Sometimes, after the tribunal hearing, you learn of something that, if you’d know about it at the time, you would have wanted to present to the tribunal. The fresh evidence might be a document, an expert’s report or a new witness.

If you won without the evidence, this won’t matter. But if you lost all or part of your case, you are likely to want to do something to change the judgment.

To use new evidence to challenge a tribunal decision, you will need to show that it satisfies the test set out in Ladd v Marshall. This is that:

1. The new evidence could not have been obtained with reasonable diligence for use at the original hearing,
2. The new evidence would probably have an important influence on the result of the case, and
3. The new evidence must be apparently credible, though it need not be incontrovertible.

This is not an easy test to meet. The tribunal system is, for obvious and sensible reasons, reluctant to reopen cases that it has already dealt with. Many applications fail, either because the tribunal believes that if reasonable steps had been taken the evidence would have been available, or they simply do not think it is significant enough to justify reconsidering the case.

But if you decide that the new evidence does pass the test, what are the mechanics of getting it considered – do you appeal, or ask for a review?

In the recent case of Adegbuji v Meteor Parking Ltd, the Employment Appeal Tribunal has said that the appropriate course is to apply for review, and that the EAT may not have the jurisdiction to deal with new evidence appeals.

These are two slightly different points. The President of the EAT, Underhill J, says review is more sensible than appeal, because the tribunal is best placed to decide how significant new evidence is and whether it is credible. So parties should apply for a review, and any appeal based on the same point, will normally be stayed until the review is completed.

This reasoning is hard to argue with, and since the President is in charge of the EAT, his approach is likely to be followed. In general, therefore, new evidence challenges should be made by review, rather than appeal.

There is probably no advantage, in these circumstances in applying for both a review and an appeal. In theory, this might give you two attempts at the issue, once on review, and then again on appeal if the review is rejected. But in practice, the EAT is unlikely hear an appeal when the same issues have already been dealt with on review. They would only do so if the tribunal had made an error of law during the review – but in that case the review decision itself can be appealed, so you can safely wait until you have that decision before deciding whether or not to appeal.

But there could be circumstances in which you’d want to appeal instead. For example, if you are appealing on a number of other grounds as well, it may seem more sensible to appeal, and have the whole case dealt with by the EAT – rather than applying for an appeal and a review. Generally I suspect that this approach is unlikely to find favour with the EAT, but it might work in the right case.

But the second point is that the President suggests that the EAT may not be able to deal with new evidence cases at all. The EAT’s powers to deal with appeals is set out at s21 of the Employment Tribunals Act 1996. This says that ‘An appeal lies to the Appeal Tribunal on any question of law arising from any decision of … an employment tribunal’. In Adegbuji, the President expresses doubt that new evidence can amount to a ‘question of law.’ If he’s right, then the EAT cannot deal with such points at all.

Adegbuji does not resolve this point, so at the moment there is no binding authority to prevent you arguing that ‘a question of law’ can cover an appeal on the basis of new evidence and the EAT has jurisdiction. There are a few problems with this: how can new evidence have anything to do with questions of law and how can the tribunal err in law, if it has decided the case correctly on the information available to it? Nonetheless, the issue is not clear cut and arguments could certainly be made the other way.

The key point is that it would be most unwise to rely solely on an appeal. If the EAT lacks jurisdiction, your appeal would be dismissed. By the time that this had happened the time-limit for review would have long passed. While new evidence is often a good reason for extending time – after all, if the evidence is genuinely new, how could you have applied earlier? – this justification falls away once you have the evidence. If you could apply to appeal, the tribunal may say, why could you not apply for a review?

The safest thing to do, therefore, is to apply for a review and an appeal, but ask for the review to be stayed pending the outcome of the appeal. Do not be surprised, however, if the tribunal and EAT prefer for the review to be dealt with first, regardless of your wishes.

Adegbuji v Meteor Parking Ltd

The Employment Tribunal Service will provide an interpreter if you or one of your witnesses doesn’t speak good enough English to give your evidence without one. The best time to ask for an interpreter is at the case management discussion, though a later request will probably also be met.

If you can’t speak English at all, or your English is very poor, you don’t have a decision to make: you need an interpreter.

But if your English is good enough for most practical purposes, but not completely fluent, you need to decide whether or not you are comfortable giving your evidence in English. Not having an interpreter when you need one can be damaging, but using an interpreter has some quite serious disadvantages too, so you’ll need to weigh up the pros and cons.

Benefits of using an interpreter

There’s really only one benefit: if you use an interpreter, you will have a better chance of understanding exactly what it is you have been asked, and making yourself clearly understood in reply. The worse your English, the more significant this benefit is.

Disadvantages

There are quite a lot of disadvantages.

When you want to draw the attention of a witness – and everyone else – to a particular line in a document in the bundle, be clear about what you’re asking them to look at. So if you’re looking at an email string, you may want to say something like ‘the third email from the top of the page, sent by Dot Walsh at 5.34 pm.’ Or if you’re looking at minutes of a meeting, you may want to say ’3 lines from the bottom of the page,’ or ’5 lines down in the 2nd paragraph.’ The holes punched in the pages are sometimes useful as landmarks, as in ‘about level with the lower punch hole.’

It’s a small detail, but in a long hearing the time wasted will add up quite a bit if the tribunal has to keep stopping you and asking where you mean.

Occasionally one party or the other wants to play CCTV footage or audio recordings to the tribunal. I have two suggestions on this:

1. Don’t

Or don’t if you can help it, anyway. If you have a recording of a conversation, it will normally be more convenient for the tribunal if you can agree a transcript of any relevant parts with the other side. If the recording is clear, the other side will probably agree with you who said what, and confine themselves to arguing about what it meant or whether it mattered. If the recording is unclear, the tribunal is likely to be bored and irritated if they’re made to listen to it, and it won’t help. Similarly with CCTV or video footage: if possible, just agree with the other side what it shows so that you can tell the tribunal without making them watch it.

1. If you do, make it as painless as possible

If you can’t get the other side to agree a transcript or a description of the material and you think it is important that the tribunal sees or hears it, there are various things you can do to minimise the inconvenience:

‘Hearsay’ is a technical term. It’s one of those things that tribunals sometimes assume everyone understands, when in fact few non-lawyers do.

It’s not very difficult, though.

All hearsay evidence is evidence a witness gives about what someone else said. But evidence isn’t hearsay just because it’s evidence about what someone said. It’s only hearsay if the point of giving it is not to persuade the tribunal that someone else said something, but to persuade them that what someone else said was true. So you can run a simple test on any piece of evidence about what someone said: ‘Does the witness want the tribunal to believe that what was said was true?’ If the answer is yes, it’s hearsay; otherwise not.

Examples

Suppose you tell the tribunal that Alison told you before your disciplinary hearing that she’d already been asked to draft an advert for your job. Why are you telling them this? Because you want them to accept that Alison had been asked to draft an advert for your job before the decision had officially been made to dismiss you. But the best person to tell them about that is Alison, not you. Your evidence is hearsay.

Now suppose you tell the tribunal that your manager said you were a useless wanker. This time you’re not trying to persuade them that what your manager said was true – you’re not giving this as evidence that you are a useless wanker. You’re just trying to persuade them that your manager insulted you. So although your evidence is about what you heard someone say, it’s not hearsay. (Of course, if you tell the tribunal that Alison told you that your manager told her that you were a useless wanker, that is hearsay.)

Why does it matter?

It doesn’t much, actually. Employment tribunals can hear whatever evidence they please, and there are no technical rules about hearsay, though they will probably place less reliance on hearsay than on direct evidence. But it’s a term you may hear, so it’s as well to understand what’s being talked about if you do.

In a complicated case, it’s worth saving all the statements on your side (and the other side too, if you have them in a suitable format) as a single continuous document. That way, if you know someone has said something about a particular subject, but you can’t remember who said it, or exactly where in their statement, you have a single document that you can search electronically (ctrl+F on a PC). This is useful while you’re preparing the case – and at the hearing too, if you have a laptop with you.

The rule about putting documents into chronological order also applies to witness statements. Begin the story at the beginning and go on to the end. This makes it much easier for the tribunal to understand what you are trying to say.

The timing of events is important circumstantial evidence in the employment tribunal. One of the reasons that preparing a chronology is so useful is that it helps you find patterns that support your case.

The classic example of this is a dismissal, where an employee has been dismissed 48 hours after announcing her pregnancy. The tribunal is likely to take some convincing that this is a coincidence. Similarly, if someone makes a protected disclosure and dismissed immediately afterwards. the tribunal will be sceptical of claims that there were long-standing capability problems.

In such cases, you will want to emphasis the timeline of events. Your cross-examination and submissions should draw the tribunal’s attention to the pattern, while undermining the respondent’s attempts to present other explanations.

But this sort of evidence is circumstantial and not definitive. It is a mistake to think that just because one event happened shortly after another, the first event must have caused the second.

If, say, the pregnant employee is dismissed along with 50 of her co-workers and the employer produces compelling evidence of a redundancy situation, much of the probative value of the timing disappears (although you would probably want to look carefully at why she was selected for redundancy).

For math / philosophy geeks, the principle is illustrated below:

Comic by xkcd

During a hearing, evidence is presented in a fairly structured way. Each witness gives evidence and is cross-examined. Witnesses tell the story in chronological order and then are cross-examined in roughly the same way.

This is a good system for hearing evidence. The logistical challenges of doing anything else would be considerable. Hearing evidence on an incident by incident basis, with witnesses stepping up and down in rapid succession, then returning when the tribunal moved onto the next part of the case would quickly create chaos.

The disadvantage of the system is that a lot of what witnesses say when giving evidence is not terribly important. Important answers can easily get lost in the crowd. Also, where more than one witness is giving evidence about a subject, the relevant evidence can get spread out and hard to follow.

Submissions, however, are an opportunity to draw the tribunal’s attention to patterns that are not clear while evidence is being given.

There are a number of ways of doing this. Below are two examples.

Collecting a single witness’ answers on a particular issue

It is notable how little Mr Smith could remember on certain key issues.

In cross examination he was asked:

• “Did you speak to HR, before writing to Ms Jones?” He replied, “I don’t know. I might have.”
• “Did you read your company’s guidance on disciplinary procedures before your meeting with Ms Jones?” He replied, “I don’t remember.”
• “Did you talk to anyone about how to run a disciplinary procedure?” He replied, “I think I did, but I can’t say for sure.”
• …

Even taking his evidence at its strongest, it is plain that Mr Smith has no clear recollection of taking any steps to establish his responsibilities in running a disciplinary procedure. His statement at paragraph 5 of his witness statement that “I had not run a disciplinary process before, but I took steps to make sure I understood what I had to do” is simply not credible.

Collecting a number of witnesses’ answers on an issue

It is apparent from the evidence of Gubbin’s managers they were confused about who was responsible for dismissing Ms Jones. Mr Smith, Mr Green, Mr Adams and Ms Watson were all asked who made the final decision.

• Mr Smith said “It was a HR issue, so Mr Adams would have done the final sign-off.”
• Mr Green said “I’m not sure, but I expect Mr Smith would have had the final say. He was her direct manager.”
• Mr Adams said “That would have been Ms Watson. She was the senior manager.”
• Ms Watson said “I was advising, but ultimately it was Mr Adams who made the decision.

The technique is the same in both examples. By extracting important parts of the witnesses’ evidence in relation to a single issue and presenting them together, the point becomes obvious.

The short answer is ‘All relevant evidence that a witness can give.’

For the long answer, keep reading.

‘All’

A witness statement should be complete. You cannot rely on a tribunal’s indulgence to expand on what you’ve said or to ask follow up questions of the witness. Even if they do let you do this, it is better to put the information in to begin with. It will be one less thing to worry about, and you can present it in an organised, thought-out manner.

The exception to this is when new issues are raised by the other-side in their witness statements.

Occasionally, this will be something sufficiently significant or involved that it is sensible to put in a supplementary statement. But often, a quick question in examination in chief is better. The form is usually something like “In his witness statement, Mr Smith says that the company handbook was available on the staff notice board. What do you say about that?”

Such questions should be asked sparingly, when you have something to add to the original evidence. Is it not necessary to go through all the the otherside’s statements, saying where they are wrong. If, for example, your witness says in her statement statement that she agreed to work for £100 per day, it is pointless to ask “Mr Jones says in his statement you agreed to work for £50 per day. What do you say to that?” The answer is obvious.

‘Relevant’

A witness statement should include everything relevant, and nothing irrelevant.

This is much easier to say than to do. The starting point is to have a clear list of issues that the tribunal will need to decide. Then put in all the evidence that will help them do so.

There is no rule about how long a statement should be. It will vary from case to case and witness to witness. However, it will normally be proportinate to the length of the hearing. If you have a 30 page claimant’s statement for a 2 hour hearing, it is a sign that something is wrong. Similarly, if you have a 3 page claimant’s statement for in a 10 day discrimination case, the chances are that it does not go into enough detail. Bear in mind that this is general guidance and there are always exceptions.

‘Evidence’

The witness statement is for evidence, rather than submissions. It should tell the tribunal what has happened, rather than tell them what to think about it. The latter is something for submissions.

Having said that, a witness statement should be organised in a way that makes is easy for a tribunal to understand what it is you will be saying. If, after all the evidence is in and you are about to start making submissions, the tribunal has no idea what you will be saying, something has gone badly wrong.

‘That a witness can give’

Occasionally you will see a witness statement that sets out the evidence of other people as well as the witness giving it. For example, it may say something like ‘Ms Smythe, the HR Manager, will say that …’ This is pointless. Ms Smythe should have her own witness statement setting out what she is going to say.

It is important not to confuse this point with the issue of ‘hearsay evidence’. Hearsay is a rule of evidence from the criminal and civil courts. The precise definition is complex, but in broad terms it is evidence from a witness about what somebody else has told them.

For example, if Mr Sampson gives evidence that Ms Brook told him that Mr Jones told her that ‘nobody sensible would appoint a woman who might get pregnant’ then Mr Sampson is giving hearsay evidence. He is one step removed from the incident and can only tell the tribunal what Ms Brook told him.

Hearsay evidence is permitted in the tribunal and is quite common. It is, however, normally better to have direct evidence. If, in the above example, it was possible to call Ms Brook, that is more likely to convince the tribunal. Of course, by the time you get to tribunal Ms Brook may have regretted her candour and refuse to assist.