New evidence between a judgment and its reconsideration – NGP Utilities v Ms A Dunnington UKEAT/0315/19/VP

After a recent Employment Tribunal decision, new evidence came to light which supported the Respondent’s submissions. The evidence was excluded, and the question for the EAT was whether the ET had erred in law.

Background to the case

The Respondent is an energy broker, and the Claimant was previously employed by the Respondent. The Claimant’s claim was essentially that she had not been paid certain commissions which she asserted she was entitled to. The Respondent’s argument was that, as these commissions were off the back of contracts which had been fraudulently brokered or mis-sold, it was entitled to keep the commissions and not pay them to the Claimant.

The ET mistook the Respondent’s argument, and believed it to be that the Respondent was claiming it had the entitlement to withhold commission, regardless of fault. As such, the ET didn’t consider the question of the Claimant’s guilt in relation to mis-selling those very contracts which gave rise to the commission.

The reconsideration

The Respondent applied for the judgment to be reconsidered. After that, the Respondent was contacted by the CEO of the company which the Claimant had gone on to work for. The CEO was reaching out to the Respondent in order to inform it that the Claimant had just been dismissed for gross misconduct after making false commission claims.

At the reconsideration hearing, the Respondent, understandably, made submissions on the basis that it now had new evidence which was relevant. However, the ET did not allow the evidence to be introduced, for the following reasons:

1. Finality of litigation;
2. The overriding objective; and
3. It would not have important influence on the hearing.

The appeal to the EAT

The EAT disagreed with the ET on all three points, set aside that paragraph of the ET’s Order, and permitted the Respondent to adduce the new evidence.

In terms of the finality of litigation, the EAT made the point that this would only be relevant if the ET hadn’t already decided to reconsider its decision. As it had done so, the door was already open, so to then rule that litigation had to have finality was a non-sequitur.

As for the overriding objective, the EAT considered that the Respondent was correct in its submission that the parties should be on equal footing, and this would not happen if the respondent were not allowed to adduce its evidence. The ET had said that the time and expense it would cause would be marginal, and therefore the balance fell down on the side of allowing the evidence.

Finally, in terms of the probative value, the EAT disagreed entirely with the ET that the evidence would not be significant or probative. Dishonesty in the claiming of commissions in employment was the very point in issue in this case, and the new evidence spoke directly to that.

As such, the EAT ruled that the ET had erred in law considering an irrelevant factor, and also that no ET could properly have reached the Decision which it did. The appeal was allowed.

Link to judgment: https://www.gov.uk/employment-appeal-tribunal-decisions/ngp-utilities-ltd-v-ms-a-dunnington-ukeat-slash-0315-slash-19-slash-vp