The claimant brought claims before the Tribunal following the selection of his white colleague to provide short term assistance for a new manager who was coming from abroad. The claimant maintained that the fact he had not been considered for this unpaid, temporary position constituted race discrimination and resigned. The Tribunal dismissed all his claims mainly on the basis of the positive assessments of the credibility of some witnesses of the respondent and a negative assessment of the claimant. The Tribunal concluded that the selection was made on the basis of appraisal records and there was no evidence that there was a discriminatory reason for the non-selection of the claimant. After the hearing it came to light that there was an email which called into question the temporary nature of the post and whether the respondent’s behaviour was on the grounds of race. The existence of the email also raised issues of credibility. The claimant applied to admit this evidence to a fresh Tribunal.

The EAT were entirely satisfied that the test for admitting further evidence was satisfied. They had no doubt that the email was relevant and would probably have had an important influence on the hearing. The EAT concluded that the non-disclosure of the email resulted in a hearing below which was unfair. However, in this case a review hearing would not suffice to correct the unfairness: the Tribunal had made adverse findings as to the credibility of the claimant which it would be difficult for the Tribunal to revisit, and it would be difficult for the claimant to have confidence in the review.

__________________

Appeal No. UKEAT/0405/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 February 2011

Before

HIS HONOUR JUDGE RICHARDSON

MR R LYONS

MR B M WARMAN

MR N ASLAM (APPELLANT)

BARCLAYS CAPITAL SERVICES & OTHERS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR N ASLAM (The Appellant in Person)

For the Respondents
MR DAVID PIEVSKY (of Counsel)
Instructed by:
Messrs Allen & Overy LLP Solicitors
1 Bishop's Square
London
E1 6AD

PRACTICE AND PROCEDURE

Review

New evidence on appeal

Admission of fresh evidence – failure to disclose document of relevance and significance in a race discrimination claim – whether to stay pending review or determine the application and deal with the appeal – consideration of [Adegbuji v Meteor Parking ]()[2010] UKEAT/1570/09 – whether in the light of fresh evidence hearing below was fair – whether review could cure unfairness. Appeal allowed and case remitted for a fresh hearing before a different Tribunal.

1. This is an appeal by Mr Nadeem Aslam ("the Claimant") against a judgment of the Employment Tribunal sitting in Central London (Employment Judge Pritchard-Witts presiding) dated 29 January 2010. By its judgment the Tribunal dismissed his complaints of direct discrimination, harassment and victimisation contrary to the Race Relations Act 1976 and also a complaint of unfair constructive dismissal. These complaints were directed against his former employers Barclays Capital Services Ltd (for convenience called "the Respondent" in this judgment) and against certain employees of the Respondent (whose names will be used in this judgment).

1. As we shall see, the Claimant's complaints relate to a period in the first half of 2008, ending on 21 June 2008 when he resigned and sought employment elsewhere. His appeal was considered at the sift stage and sent through to a full hearing on one ground only, relating to one central issue in the case which might impact on the Tribunal's reasons, wholly or in part: see the judgment of His Honour Judge Serota QC, identifying documents of potential importance on that question. But it has recently come to light that the Respondent, in breach of its duty of disclosure, failed to disclose an email relating to that central issue; and today we have considered an application to adduce further evidence. The parties have addressed us on whether that email should be admitted; whether if the email is admitted it ought to result in the appeal being allowed; and whether if it is allowed it should be remitted to the same or to a different Tribunal.

1. The Respondent is an investment bank. The Claimant was employed within its technical department – a department of some 3454 employees of whom 1,543 are based in the United Kingdom. Within the technical department there were teams responsible for sourcing. One team was responsible for IT sourcing. Another was responsible for non-IT sourcing. This was the department within which the Claimant worked.

1. The Claimant was originally employed on 31 August 2004. He is described by the Tribunal as "Asian-Indian". He was appointed to the post of Associate Director within the department with effect from 1 March 2007. Three people reported to him. He earned £75,000 per year. The last bonus he received was £22,500.

1. At the beginning of 2008 the Claimant's line manager was Mr Rajesh Shah, the Global Director for non-IT sourcing. Two others apart from the Claimant reported to Mr Shah: Mr Paul Emmett was one of them. He is described by the Tribunal as white and British. Mr Emmett was also an Associate Director, having been appointed to that post with effect from May 2006.

1. As the Tribunal found, Mr Shah conducted appraisals for both the Claimant and Mr Emmett during 2007. Mr Emmett was marked higher in two assessments; and at the end of the year he was described as "very successful ... excellent", whereas Mr Shah was described as "solid...steady". Mr Shah recommended Mr Emmett for nomination to Director grade; he did not recommend the Claimant.

1. Between November 2007 and March 2008 there was a review of the teams concerned with sourcing. A decision was taken to merge IT sourcing and non IT sourcing. Mr Shah's post was redundant. A competition took place to appoint the head of the new merged team. Mr Shah was not successful. Mr James Cay was appointed to the new post of Head of Sourcing.

1. At the time of his appointment Mr Cay was working in San Francisco. A decision was taken – putting it neutrally for the moment – that Mr Emmett should provide assistance and support to him. This decision was taken in early March 2008. When the Claimant learned of it he was upset – both by what had happened to Mr Shah and by the appointment of Mr Emmett which he perceived to be an affront. He complained in an email dated 11 March 2008:

"I have concerns that Rajesh Shah has been made redundant and that Paul Emmett has been handpicked to lead the team in the interim without presenting the same opportunity to me. The role also feels very similar to one occupied by Rajesh Shah previously."

1. Mr Cay (who, the Tribunal found, was not responsible for the appointment) sought to re-assure the Claimant that it was only a temporary appointment which would not disadvantage him, but the Claimant said in an email dated 17 March:

"You confirmed that I was not known to you prior to our meeting and the fact that Paul has been selected in the interim position will not disadvantage me in any way should the role become permanent at a later stage. However I disagree with your comments and would state that an equal opportunity has not been provided to me for this interim position and that your actions have been ones of discrimination against me. Paul Emmett will definitely be a front runner compared to me because he has received more favourable treatment than me."

1. This correspondence tends to show that the Claimant was indeed informed that the role of Mr Emmett would be temporary; but that he had his doubts about this, feeling that Mr Emmett would do a job very similar to that of Mr Shah; and in any event that he felt the die was cast as regards promotion.

1. It is not necessary for the purposes of this judgment to set out the subsequent history in great detail. Following the Claimant's complaint the Respondent withdrew Mr Emmett's role. The Claimant remained dissatisfied; in March he began to search for other work. He found other work in June 2008 and resigned his employment with the Respondent. In the meantime he perceived other actions of the Respondent as discriminatory or harassment or victimisation. These included allegedly (1) failing to deal with his complaints as a grievance; (2) failing to offer him opportunities to develop his career; (3) burdening him with an increased workload; (4) failing to increase his pay in line with that of Mr Emmett; (5) leaving him off the recipient list of an email dated 18 June and (6) downgrading a 2007 appraisal mark.

1. The Tribunal hearing took place over 7 days between 30 November and 9 December. Both sides were represented by counsel. A list of issues was hammered out and agreed between counsel. At the head of the list was the following:

"The interim new role issue. Did the Respondents treat the Claimant less favourably on grounds of race than Mr Emmett .... by asking Mr Emmett to undertake this role on or around 5th March 2008?"

1. There were other issues. It was alleged by the Claimant that Asian managers (Mr Shah and a Mr Rai) were deliberately removed by reason of their race: this was an issue. And the various other perceived actions which we have already summarised were stated as issues.

1. The Tribunal in its reasons set out a full and accurate statement of the law. They specifically referred to Anya v University of Oxford [2001] IRLR 377 as guidance (in the Tribunal's words) "to be careful about the uncritical acceptance of eloquent verbal testimony and assessing credibility by checking such evidence against the contemporaneous documentation and the way in which evidence came to light in the interlocutory stages and final stages of the litigation." Other paragraphs of the Tribunal's reasons indicate its awareness of the particular evidential difficulties facing a claimant in a discrimination case: see paragraphs 111 and 114.

1. The Tribunal rejected all the Claimant's complaints. It is not necessary to set out all its reasoning in full: the reasoning is detailed, running to some 144 paragraphs over 30 pages. The Tribunal made findings of fact which are plainly based on positive assessments of the credibility of some witnesses of the Respondent; and at one point it expressly made a negative assessment of the credibility of the Claimant (paragraph 137).

1. This appeal focuses upon the issue concerning Mr Emmett's appointment. We will therefore identify the principal findings and conclusions of the Tribunal concerning this issue.

1. As to the circumstances of appointment, the Tribunal found the following:

"48. In order to assist Mr Cay, his line manager, Mr Broyden, having consulted Ms Kent Phillips, decided to create an interim position to co-ordinate and communicate the non-IT team's views to Mr Cay as he conducted his duties in North America and, for a short period, upon his return whilst he orientated into his new role. This was effectively a conduit facility during which it was envisaged that the duties would last for no more than four to six weeks.

49. The role involved no line management responsibilities, no decision-making powers and no salary increase. The pool that he considered for selection was that of Mr Emmett and Mr Aslam. Ms Blackler-Roberts was in it initially but she was to be away on maternity leave. Accordingly, Mr Broyden called for the appraisal records of both Mr Aslam and Mr Emmett and studied the work history of the two men and in particular the appraisals, gradings and comments provided by Mr Shah who line managed and appraised the pair of them. Accordingly, Mr Broyden decided to select Mr Emmett as having a more impressive appraisal record but before confirming his choice he spoke to his predecessor, Ms Kent Phillips, who confirmed Mr Emmett's suitability. Ms Kent Phillips was aware that Mr Emmett had occasionally accompanied Mr Shah to various meetings whereas Mr Aslam had not. As this was considered to be a sign of confidence in an employee, she took the view that Mr Aslam was not "a highflier"."

1. As to the meeting on 7 March when the Claimant learned of the appointment, the Tribunal said:

"53. At the meeting Mr Cay … clarified Mr Emmett's role making it clear that it was of an interim nature and designed to provide a conduit service to him through which the non-IT team's concerns could be 'escalated' as he familiarised himself with his new role with the two merged teams. At no stage was it indicated to the team that Mr Emmett had replaced Mr Shah nor was it indicated to the team that they were reporting to Mr Emmett in any line management sense of the term."

1. The Tribunal's conclusions were stated in the following way:

"118. It is worth remembering in our unanimous view that the selection of Mr Emmett had nothing to do with Mr Cay. The decision was Mr Broyden's. It is right that the two potential candidates were not interviewed and given the opportunity to make a case for their selection. The facts disclose, however, that Mr Broyden's purpose was to find, upon an interim basis of not more than four to six weeks, a conduit to assist Mr Cay during the transition period when the IT and non-IT sourcing teams were being merged. The role, we are satisfied, had no line management, power or responsibility associated with it. Rather it was as described an 'escalation' role which means in ordinary language that Mr Emmett was to become somebody who could act in order to collate and channel information from the non-IT team members up to Mr Cay rather than Mr Cay having to take soundings from individuals.

119. The selection was made, we are satisfied, on the 2007 performance appraisal records in which Mr Emmett was the only one of the candidates to get an A grade. It is significant not only that Mr Shah, an Asian manager, had graded both Mr Emmett and Mr Aslam but also that he recommended Mr Emmett for promotion in the future. This he had not done in respect of Mr Aslam. Also, Mr Broyden checked the selection with Ms Kent Phillips which is entirely consistent with a fair, balanced and non-discriminatory approach. We attach no weight to the remark that Mr Aslam was not regarded in her eyes as being a highflier as clearly given the comparative appraisals Mr Emmett was and had accompanied Mr Shah to meetings at which he had been noticed by Ms Kent Phillips.

120. There were other differences but although all these were in favour of Mr Emmett, they were not material to the decision to appoint him to this temporary role without any managerial responsibility.

121. In evidence Mr Aslam even conceded that Mr Shah had a particularly good opinion of Mr Emmett and this is borne out by all the evidence in the case.

122. On that basis, as the evidence clearly at this stage points to a non-discriminatory reason for the selection, the claim for direct discrimination must fail in this regard.

123. It is clear to us that Mr Aslam took offence as he felt that he had lost status when he misconstrued the position to which Mr Emmett was requested to fill as being a line management appointment which required him to be a subordinate report as a consequence. Satisfied also that the role did not involve additional status, revised grading or salary adjustment we are unanimously content that the assurances given by Mr Cay to Mr Aslam were genuine when he raised his informal complaint, albeit in writing.

124. It is certain to us that Mr Aslam over-reacted when he instructed some 50 agencies to seek alternative employment for him and we have no doubt that he felt unsettled thereafter, even though the issue was appropriately addressed."

**The application to adduce further evidence**

1. There has now come to light an email dated 28 February from Mr Keith Trotter, who is a relatively senior manager in the Respondent's business community management team, to his line manager Mr Broyden. This sets out a draft announcement. The appointment of Mr Cay is first announced. The draft then continues:

"Also, with immediate effect, Paul Emmet assumes responsibility as Head of Non IT Sourcing categories reporting to …. Paul joined the firm in ….. and has successfully managed the HR and ….. Category to date."

1. This email was not disclosed in the Tribunal proceedings even though there was an order for disclosure and even though Mr Broyden was one of the individual parties. The Respondent instructed solicitors, Allen and Overy to represent itself and all the individual Respondents. They did not disclose it; they have informed the Claimant that they did not receive it during the usual exercise to produce a list of documents. However, Mr Shah also brought proceedings. Allen and Overy say the email was first received by them from the Respondent in those proceedings during February 2010. It was disclosed in those proceedings. It was, however, not disclosed to the Claimant. In its Answer in this appeal the Respondent said as recently as September 2010:

"There was, in fact, no document in evidence (and certainly none mentioned in the Notice of Appeal or at the 3(10) hearing) which stated or suggested that the role which Mr Emmett had been asked to carry out was permanent"

1. It is unfortunate that the Answer should have been phrased in this way at a time when the email still had not been disclosed.

1. The Claimant, learning of the existence of this email, asked for a copy in January 2011. Only then was the email disclosed to him.

1. The firm has correctly and appropriately apologised to the Claimant for the failure to disclose the email. Once it was appreciated that an email was in existence which ought to have been disclosed, the Claimant should have been informed. The Answer should not have been lodged in the terms which we have stated. Moreover, of course, the email should have been disclosed by the Respondent prior to the Tribunal hearing.

1. Whether Mr Trotter's email stands alone, or whether there were associated with it other relevant documents, electronic or paper, may have to be considered hereafter. We need not investigate that matter today.

1. The Claimant applies to adduce Mr Trotter's email. He submits that it would make all the difference to the Tribunal's findings. A finding of discrimination would inevitably be made.

1. The test which the Appeal Tribunal applies is found in the Appeal Tribunal's 2008 Practice Direction. Paragraphs 8.1 and 8.2 provide:

"8.1 Where an application is made by a party to an appeal to put in, at the hearing of the appeal, any document which was not before the Employment Tribunal, and which has not been agreed in writing by the other parties, the application and a copy of the documents sought to be admitted should be lodged at the EAT with the Notice of Appeal or the respondent's Answer, as appropriate. The application and copy should be served on the other parties. The same principle applies to any oral evidence not given at the Employment Tribunal which is sought to be adduced on the appeal. The nature and substance of such evidence together with the date when the party first became aware of its existence must be disclosed in a document, where appropriate a witness statement from the relevant witness with signed statement of truth, which must be similarly lodged and served.

8.2 In exercising its discretion to admit any fresh evidence or new document, the EAT will apply the principles set out in Ladd v Marshall [1954] 1 WLR 1489, having regard to the overriding objective, i.e.:

8.2.1 the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing;

8.2.2 it is relevant and would probably have had an important influence on the hearing;

8.2.3 it is apparently credible.

Accordingly, the evidence and representations in support of the application must address these principles."

1. There is no doubt – and it is conceded – that the first limb of the test is satisfied. The Claimant could not have obtained the email with reasonable diligence except through the disclosure process. The third limb is also satisfied: the email is a genuine document.

1. On behalf of the Respondent Mr Pievsky submitted that the email would not have had an important influence on the hearing. He pointed out that the difference in treatment was admitted; that the issue was the reason for the difference in treatment; that had nothing to do with race, but was rather related to the fact that Mr Emmett was an excellent candidate as shown by his favourable assessments; and (as regards constructive dismissal) that the resignation occurred 3 months afterwards in circumstances where the Claimant was found to have affirmed the contract. He submitted that the email was of limited relevance to credibility.

1. We, however, have no doubt that the email is relevant and would probably have had an important influence at the hearing.

1. Firstly, the email calls into question an important finding of the Tribunal – namely that the post was temporary and only for 4-6 weeks to provide assistance. It tends to show, at the very least, that there were discussions concerning the appointment of Mr Emmett to the permanent post of Head of Non IT Sourcing. The Claimant was of course always told that the post was interim only; but as we have seen he suspected that the appointment of Mr Emmett in this way amounted to or was a precursor to a full appointment, and that he was in practice disadvantaged by it. The email may be thought to provide significant support for his suspicions.

1. Secondly, the email is plainly relevant to the question whether the Respondent's behaviour was on the grounds of race. It is one thing to select an employee informally if that employee is in reality only providing short term assistance to help a new manager come from abroad. It is another thing altogether to put a manager into place with a view to permanent appointment; this latter course potentially pre-empts a proper and fair selection procedure. The email provides support to the contention of the Claimant that this is, in effect what the Respondent was doing. It is material from which a Tribunal is entitled to draw a conclusion that this is what the Respondent was doing and from which it is entitled to draw conclusions when it considers whether there was discrimination on the grounds of race.

1. Thirdly, there are issues of credibility: not only of Mr Broyden, who failed to disclose this email, but also potentially of other witnesses, including Mr Cay. The evidence of these witnesses was potentially of relevance to other issues which it was the task of the Tribunal to decide.

1. We are entirely satisfied that the test for admitting further evidence is satisfied.

1. It does not, however, necessarily follow that the Tribunal should admit further evidence. The Employment Tribunal has a power to do so itself on a review: see rule 34 of the Employment Tribunal Rules. Mr Pievsky submitted that this is the appropriate course. He drew our attention to two authorities.

1. In Malken v West Midlands Regional Health Authority Mummery LJ said:

"Appeals from the employment tribunal are limited to questions of law. Questions of fresh evidence falling within regulation 11(1)(d) would normally be dealt with more appropriately by an application for a review to the chairman of the tribunal responsible for the original decision reached without that fresh evidence."

1. In Adegbuji v Meteor Parking [2010] UKEAT/1570/09 Underhill P said:

"7. I should start by making this observation, though it will not be the basis on which I decide the case. In my judgment the right course for a party who seeks to have a decision of an employment tribunal overturned on the basis of fresh evidence will almost always be to apply to the original Tribunal for a review under rules 34 to 36 of the Employment Tribunal Rules of Procedure, relying on rule 34(3)(d). This Tribunal only has jurisdiction to correct errors of law on the part of an employment tribunal: see section 21(1) of the Employment Tribunals Act 1996. As at present advised, I find it hard to see how an employment tribunal which decides a case properly on the evidence before it can be said to have made an error of law simply because evidence is subsequently produced which suggests that its decision was wrong. (Any analogy with fresh evidence appeals in the Court of Appeal on appeals from the High Court seems to me flawed, because the Court of Appeal has in principle jurisdiction to entertain an appeal on an issue of fact: also, there is no review procedure available in the High Court.) This appears however to be a novel point, and I have not however heard argument on it. I am accordingly prepared to assume for present purposes that this Tribunal has jurisdiction to entertain fresh evidence appeals, while flagging it up as a point which may need to be decided on a future occasion. (In some circumstances, where a new evidence point is only part of an appeal also proceeding on other grounds, section 35 of the 1996 Act may give this Tribunal the relevant jurisdiction.) However, even on that basis, the review procedure of the employment tribunal will normally be much more appropriate for deciding a fresh evidence issue. The employment tribunal will normally be better placed to decide at least the second and third questions arising under Ladd v Marshall [1954] 1 WLR 1489 - that is, whether the evidence in question would probably have had an important influence on the outcome of the case and whether it is apparently credible. Time limits in the employment tribunal are rather tighter for an application for a review than they are for an appeal to this Tribunal, but there is power to extend time in both cases and in truth, in a genuine fresh evidence case, the tribunal will generally be disposed to grant an extension because if the evidence could genuinely not have been obtained earlier it would not normally be just to refuse it.

8. For those reasons, it is already very common for fresh evidence appeals to be stayed pending a review application made, or to be made, in the employment tribunal. That course, however, was not taken in this case, and it does not appear to be the universal practice. I hope that henceforth it will become general practice, at least in cases where the fresh evidence issue stands alone or is easily separable from any other issues that may be raised."

1. These authorities indeed represent the usual practice of the Appeal Tribunal. As a general rule where there is an application to adduce further evidence an appeal will be stayed, usually at the sift stage, to enable the Tribunal to consider review. This is generally appropriate because an appeal lies only on a question of law; fresh evidence generally relates only to questions of fact; and is therefore best determined by the Tribunal.

1. However, the admission of further evidence may be relevant on appeal to a question of law. It may, for example, give rise to a question of the fairness of the hearing process at Tribunal level. It is part of the task of the Appeal Tribunal to ensure that a hearing at the Tribunal below was a fair hearing, meeting the requirements of the common law and of article 6 of the European Convention on Human Rights both of which guarantee a fair hearing.

1. Generally speaking the mere fact that fresh evidence has come to light will not imperil the fairness of the proceedings. Employment Tribunal procedure, including the power to grant a review, will be able to encompass most circumstances in which fresh evidence has come to light and to deal with any fresh evidence in a way which is both fair and proportionate. Occasionally, however, this will not be possible. Then the Appeal Tribunal must intervene.

1. Mr Pievsky submitted that it was possible for the hearing process at Tribunal level to be fair in this case. He pointed out that on any view it was not the fault of the Tribunal that there was non-disclosure. He submitted that the Tribunal on a review would be able to listen to further evidence and make an assessment of the significance of the email which would be fair. The Claimant did not agree and sought a complete re-hearing.

1. We have reached the conclusion that the non-disclosure of the email resulted in a hearing below which was unfair.

1. For reasons we have explained, the email was potentially important material for the Tribunal to consider in at least three ways: as to its primary findings of fact on one issue; as to the question whether there was unlawful discrimination on that issue; and as to the credibility of more than one witness. The Claimant was deprived of that material. His advocate was obliged to advance his case and cross examine without it.

1. In many cases a Tribunal will be able to correct unfairness of this kind by ordering a review. In this case however we do not think that a review hearing will suffice to correct the unfairness. Such a hearing would generally have to be before the same Tribunal (rule 36(1) of the Employment Tribunal Rules). The Tribunal made adverse findings as to the credibility of the Claimant which it will be difficult for the Tribunal to revisit; and it will be difficult for the Claimant to have confidence in a process of this kind. The Tribunal made findings based upon the credibility of other witnesses which again it will be difficult to revisit. And this has arisen by reason of a significant breach of an order by the Respondent. We are certainly not saying that a review is inappropriate in every case where the Tribunal has made findings on credibility; but in a case of this kind, where for reasons given in Anya (see paragraphs 7-11 and 25) **there should be anxious scrutiny of relevant contemporaneous documents before a Tribunal reaches conclusions on credibility, we think a review would be insufficient for justice to be done and seen to be done.

1. Accordingly the appeal will be allowed; the judgment set aside; the matter remitted for re-hearing before a different Tribunal.

1. We do not need to express, and will not express, any view as to whether the Claimant's appeal might have succeeded as originally put. It is enough to say that the documents on which the Claimant relied, and which His Honour Judge Serota QC identified, potentially derive much greater force for his case as a result of disclosure of the email.

1. We also make it clear that we express no view as to the merits of the Claimant's claim. We should record that the Respondent says the email dated 28 February was sent out by mistake. The merits will be a matter for a fresh Tribunal to assess, starting from scratch, untrammelled by any findings of the existing Tribunal. The Tribunal will be able to consider again all the issues which were agreed by the parties for the last hearing.