Employment Appeals Tribunal refuses 'powerful' new evidence

A worker has won the right to compensation for his sacking after being accused of poaching customers from his employer and starting up his own rival firm. The employer lost the case despite a tribunal finding 'powerful evidence' in the employer's favour.

The Employment Appeals Tribunal (EAT) told the employer that new evidence, which it said was powerful, would not be admitted because it should have been presented at the original hearing of the Employment Tribunal.

"If this evidence had been available at the remedy hearing, it would have been very powerful evidence indeed," said Justice Burton, delivering the EAT's ruling.

"The courts, both in the High Court and County Courts and in Employment Tribunals, set their face against second bites of the cherry," he said. "It is in the interests of the public that justice be seen to be done only once, and that so far as possible all evidence be brought forward on the one occasion."

The employer was a Mr Todd, who traded as Hygia Professional Training. He employed a Mr Cutter as a training consultant. Cutter was dismissed in December 2005 because he was suspected of approaching Hygia clients about their becoming clients of his in a planned new company.

The case was heard by the Employment Tribunal, but Todd failed to call witnesses to that hearing or to obtain testimony from them. Todd was not represented by lawyers but had hired a firm of employment consultants up until a week before the hearing.

Cutter was awarded £13,400 by the Tribunal. "At long last Leviathan moved and Mr Todd began to make some inquiries," said Burton, describing what happened after that original hearing. "We now have, by way of support for this appeal, witness statements from four people."

That evidence seemed to support Todd's claims that Cutter had planned his business before leaving the employment of Hygia, but the EAT could not consider the evidence because it had not been submitted in the original case.

"The issue that we have to decide is … whether the evidence was reasonably available at the first hearing, or in this case at either or both of the first hearings – whether it could have been made available by the taking of reasonable steps," said Burton. "We are entirely satisfied that this evidence could have been made available by the taking of reasonable steps."

The ruling underlines that the EAT will not accept substantial new evidence. Burton said that though Todd's consultants ought to have told him to gather evidence before the original hearing, Todd must still be responsible for his side's conduct in the dispute.

"We are entirely satisfied that this evidence could have been made available by the taking of reasonable steps. First in the firing line must be the employment consultants who were acting on behalf of the Appellant until shortly before the liability hearing," he said. "We are entirely satisfied that such reasonable diligence, until they ceased to be employed by him, would have been that of the employment consultants, who could have been expected to have done their job properly. Their failure must be ascribed to the Appellant."