Appeals and Fresh Evidence

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (HHJ Richardson presiding) has handed down judgment in the case of Aslam v Barclays Capital Services & others which is authority for the proposition that the EAT may consider fresh evidence appeals, where a fair hearing might not be achieved by a review by an Employment Tribunal.

The Claimant appealed having lost a discrimination case. Only during the appeal did the Respondent disclose an e-mail, which the Claimant sought to admit as it might have impacted on the credibility of the parties.

The EAT admitted the e-mail and allowed the appeal, having considered Adegbuji v Meteor Parking (see bulletin 8th July 2010). Concurring that the usual approach to fresh evidence is to seek a review from the Employment Tribunal rather than appeal, having applied Anya v University of Oxford, the EAT distinguished situations where an appeal is appropriate. As a review is generally held by the original Tribunal, its findings on witnesses' credibility may be difficult for it to re-visit. If credibility is a serious issue, the right to a fair hearing is maintained and justice can be seen to be done by remission to a fresh Tribunal, which can be ordered after an appeal.