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."
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