Practice - Appeals

Korashi v Abertawe Bro Morgannwg University Local Health Board: Employment Appeal Tribunal (Judge McMullen QC, Mr B Beynon and Mr T Stanworth): 12 September 2011

PD 8.2 of the Practice Direction (Employment Appeal Tribunal (EAT) - procedure) 2008 provides: 'In exercising its discretion to admit any fresh evidence or new document, the EAT will apply the principles set out in Ladd v Marshall [1954] 1WLR 1489, having regard to the overriding objective, i.e.: 8.2.1 the evidence could not have been obtained with reasonable diligence for use at the employment tribunal hearing; 8.2.2 it is relevant and would probably have had an important influence on the hearing; 8.2.3 it is apparently credible. Accordingly the evidence and representations in support of the application must address these principles.'

The employee was a doctor of Egyptian nationality and Arabic descent. In January 2005, he had complained to the General Medical Council (GMC) about the treatment of six patients by another doctor. In May 2006, he had complained to the police about four deaths which had occurred in the years up to September 2004. In June 2006, he had disclosed 120 cases relating to the care of patients and the absence of informed consent to procedures for which they had been admitted.

He brought a claim in the employment tribunal (the tribunal) in respect of alleged detriments he had suffered as a result of making those disclosures under sections 47B-47C, 47G and 47H of the Employment Rights Act 1996. His claim also included a number of complaints of race discrimination and victimisation. The tribunal dismissed all of his claims save for the direct race discrimination claim on which it did not provide a decision. The employee appealed.

The EAT dealt with the appeal and the employee's application to adduce fresh evidence (the employee's application). In respect of the appeal, issues arose as to: (i) whether the tribunal had been correct to find that the employee’s disclosures in January 2005 and May and June 2006 had not been made in good faith; (ii) whether the tribunal had been correct to find that the disclosures in January 2005 and May 2006 had also been made without the employee having a reasonable belief in the truth of the disclosures; (iii) whether it was clear that the tribunal would have dismissed the employee’s direct race discrimination claim; (iv) whether the tribunal had erred in dismissing the employee’s victimisation claim; (v) whether the tribunal had been correct to rule that various claims had been brought out of time; and (vi) whether the tribunal’s reasons were compliant with the approach set out in Meek v City of Birmingham District Council [1987] IRLR 250 (Meek).

The EAT further considered whether it should allow the employee's application. In relation to the latter matter, consideration was given to PD 8.2 of the Practice Direction (EAT - procedure) 2008 (the PD). PD 8.2 of the PD stated that the correct approach of the EAT in dealing with an application to adduce new evidence would be to apply the principles set out in Ladd v Marshall [1954] 3 All ER 745 and to have regard to the overriding objective. Against that background, the issues were (a) whether the material was really new, and (b) whether it would have had an important impact on the tribunal's decision. The appeal would be dismissed.

(1) In the instant case, the tribunal had been entitled to come to all of the conclusions that it had come to. Further, the tribunal’s reasons had been Meek compliant. (see [112] of the judgment). Meek v City of Birmingham District Council [1987] IRLR 250 applied; Street v Derbyshire Unemployed Workers' Centre [2004] 4 All ER 839 considered; Martin v Devonshires Solicitors [2011] All ER (D) 345 (Mar) considered.

(2) On the facts, the evidence could with due diligence have with been brought before the tribunal. It could not have had a significant impact upon the tribunal. Accordingly, neither of the tests in Ladd v Marshall were met and the evidence was also not new (see [133]-[134] of the judgment). The application to adduce new evidence would be refused (see [138] of the judgment).

Ladd v Marshall [1954] 3 All ER 745 applied; Malkan v Chief Executive NHS Executive [2002] All ER (D) 45 (Sep) considered; Rance v Secretary of State for Health [2007] All ER (D) 81 (May) considered; Sharab v Al-Saudx [2009] All ER (D) 232 (Apr) considered.

Per curiam: The tribunal is in a far better position than the EAT to judge applications to adduce fresh evidence and such applications should be made to the tribunal. Although the PD allows such applications to be made, these should be sparingly granted and the EAT will always look to see if an application has been made to the tribunal and its response, and will stay proceedings in the EAT until the outcome of any such application.

Anthony Korn (instructed by Irwin Mitchell LLP, Birmingham) for the employee; Peter Wallington QC and Edward Capewell (instructed by Morgan Cole, Swansea) for the employer.