The Claimant, a Muslim of South Asian/Turkish/Iranian origin, was engaged as an agency worker, and he was verbally abused by employees of the First and Second Respondents. There was some doubt over the translations of the Russian and Lithuanian terms used, and the ET dismissed the Claimant's claims of harassment and victimisation, ordering him to pay a contribution of £10,000 towards the costs of each Respondent. When the Claimant obtained further evidence concerning one of the abusive terms, the ET refused his reconsideration application on the basis that he had no reasonable prospect of success because he was "attempting to relitigate facts and evidence found by the Tribunal at the hearing". The Claimant appealed against the ET's decisions, with his points of challenge falling under the headings of fresh evidence and costs.

The EAT held, as regards fresh evidence, that the ET fundamentally erred in its decision on the Claimant's reconsideration application, the test in Ladd v Marshall was made out, and the new evidence went to the heart of the proceedings on the Claimant's claim; and, as regards costs, that the ET's decision could not stand, in view of the decision on fresh evidence, or the fact that the ET had referred to without prejudice material that was not marked "without prejudice save as to costs", or the ET's failure to recognise that it had a discretion as to whether to make an award of costs. The matter would be remitted to a fresh ET.