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A reminder for employers that evidence disclosure is a key part of Tribunal proceedings.
In Mayanja v City of Bradford and Metropolitan District Council the Employment Tribunal's decision that the claimant was not a credible witness could not stand following admission of new evidence.
The EAT set aside the Tribunal's liability and costs judgments and remitted the claim to a fresh Tribunal to consider and determine Mr Mayanja's complaints again.
The case serves as a useful summary of the procedure which should be adopted for appeals which are reliant on new evidence disclosed after the Tribunal hearing.
Tribunal procedure
In accordance with its Practice Direction 2024, the EAT will not generally consider evidence that was not before the Employment Tribunal on appeal. Instead, parties wishing to overturn a Tribunal decision based on fresh evidence should usually apply to the Tribunal for reconsideration of the judgment before applying to introduce that new evidence in the EAT.
As the Tribunal has heard the witness evidence when determining the facts in a claim, it is therefore best placed to consider and determine whether fresh evidence would have made a difference to its conclusions.
Background
The case concerned Mr Mayanja, who identified as black African. In October 2021, he applied for a job with Bradford Council as a Refugee and New Communities Integration Officer but was unsuccessful in his application.
He subsequently brought an Employment Tribunal claim against the Council. He alleged breach of contract, direct race discrimination, indirect race discrimination and victimisation in respect of the decision not to progress his appointment, and race harassment in respect of a comment allegedly made during the recruitment process by the recruiting manager, Ms C.
Employment Tribunal decision
In his witness evidence during the Tribunal hearing in October 2022, Mr Mayanja asserted that he had been offered the job. In contrast, Ms C's witness evidence was that there had been no offer, and Mr Mayanja had simply been informed that he was the preferred candidate for the role in the ongoing selection process.
The Tribunal preferred Ms C's evidence, and found inconsistent statements made by Mr Mayanja in respect of voice messages and emails regarding the job offer and his acceptance of that offer casted doubt on his credibility as a reliable witness.
In November 2022, all of Mr Mayanja's complaints were dismissed. The Tribunal found that he had fabricated his harassment complaint and constructed his breach of contract claim in an untruthful way.
The Council made an application for costs following receipt of the Tribunal's judgment and on 12 April 2023, costs were subsequently awarded against Mr Mayanja in the sum of £2,000.
Reconsideration
After the Tribunal had delivered its judgment, Mr Mayanja discovered an email on his computer from Ms C which offered him the job and asked him to telephone the next day to confirm his acceptance.
Mr Mayanja made an application for reconsideration on 25 April 2023. In his covering email he stated he was applying for reconsideration of the Tribunal's "cost decision dated 05/04/2023 served on me on the 12th April 2023". He attached two documents to his email, the first was a 6 page 'grounds of challenge,' and the second was the email from Ms C which Mr Mayanja asserted was "fraudulently excluded" from the Tribunal bundle.
In his grounds of challenge, Mr Mayanja indicated, somewhat opaquely, that he was challenging both the liability and costs decisions. However, the Tribunal treated the application for reconsideration as being limited to its judgment on costs.
The Tribunal admitted the email as new evidence, which it found to be credible and determined that there was an equal obligation on the parties to disclose it during the Tribunal proceedings. The Tribunal found that either party could have done so with reasonable diligence.
Reducing the costs awarded against Mr Mayanja to £200, the Tribunal concluded that the email did not impact its finding that his harassment claim was fabricated, but it did affect its finding that his breach of contract claim was constructed on a basis he knew to be untrue.
Mr Mayanja appealed to the EAT.
EAT decision
The EAT directed itself to the very limited circumstances in which it was prepared to consider the admission of new evidence. In particular, the EAT reminded itself of the case of Adeguji v Meteor Parking Ltd, UKEATPA/1570/09/LA in which Underhill (P) stressed the expectation that where there is new evidence, generally an application for reconsideration should be made to the Tribunal.
The EAT found that Mr Mayanja had sought reconsideration as required by the Practice Direction 2024. Despite the misleading covering email, the application itself clearly stated that Mr Mayanja was seeking reconsideration of both the liability and costs decisions of the Tribunal. On this basis, the Tribunal should at the very least have considered whether to reconsider the liability judgment.
The Tribunal had permitted the new evidence in setting aside part of its costs judgment. Having permitted Mr Mayanja to rely on this new evidence, the EAT found it was incumbent on the Tribunal to consider Mr Mayanja's application to rely on the new evidence to reconsider the liability judgment.
In any event, if the Tribunal had not accepted that the new evidence could be relied upon, in the unusual circumstances of the case the EAT would have permitted the admission of the new evidence in the appeal.
Specifically, the EAT disagreed with the Tribunal that Mr Mayanja could have been expected to disclose the email by exercising reasonable diligence. Whilst the Tribunal had indicated there was an equal obligation on the parties disclose the email from Ms C, its own orders to prepare for the liability hearing placed the primary obligation on Bradford Council to provide the relevant documents. In the circumstances, it was reasonable for Mr Mayanja to rely on Bradford Council exercising proper care when doing so.
Whilst the "core reasoning" for the Tribunal's rejection of the harassment complaint was Mr Mayanja's inconsistent account of the timing and content of a conversation with Ms C, the "backdrop to the Tribunal's analysis" was its overall assessment of Mr Mayanja's credibility, which had been fundamentally undermined by its conclusion that he had falsely asserted an offer of employment had been made by Ms C.
The EAT's view was that the Tribunal's decision "was built on foundations of sand" because it adopted "the approach of preferring the evidence of Ms [C] to that of Mr Mayanja where there was any conflict". It was therefore unclear whether the Tribunal's decisions would have gone against Mr Mayanja in all the other respects without that generalised determination being made. As a result, the liability and costs judgments were fundamentally unsafe and were set aside, with the claim remitted to a different Tribunal to consider afresh.
The EAT stated that the case "demonstrates the risk of making an overarching assessment of credibility that then is relied on in all further assessments."
The case serves as a reminder that in most cases, a party seeking to have a Tribunal decision overturned based on fresh evidence should apply to the original Tribunal for a reconsideration of its decision. As a result, it is common for appeals based upon fresh evidence to be stayed in the EAT pending an application for reconsideration being made.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
