New Evidence as a Ground of Appeal

The EAT has handed down a decision confirming the strict approach it takes to allowing an appeal on grounds of fresh evidence.

The employer dismissed an employee for trying to poach customers. At the tribunal hearing, the employer had no real evidence of the poaching, which it explained on the grounds that it did not know it was expected to obtain such evidence.

Following the decision, the employer obtained four witness statements which, if accepted, would be fairly overwhelming evidence that the ex-employee had been approaching clients to solicit work (whilst still employed).

The EAT held that this did not enable the employer to have a second bite at the cherry. Whilst clearly credible and relevant, there was no proper explanation for not having obtained the evidence first time round. Neither ignorance, nor possibly incompetent advice from the employer's employment consultants, came close to being sufficient.

Hygia Professional Training v Cutter