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Hi there please can someone clarify this small point for me as I am having difficulties.

 

When It comes to appealing on Fresh evidence I believe that this is indeed possible, however the EAT rules states that one must have been reasonably diligent in requesting this evidence.

 

This is somewhat contradictory as one cannot be so diligent as to request information and obtain it if the respondent is refusing to disclose it!

 

How can one satisfy the Ladd v Marshall rules to submit the evidence when at the same time it is indeed true that one can appeal on Fresh evidence that was previously concealed.

 

This is all without using court orders for disclosure

 

please someone can explain as I am very confused

 

Regards

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Fresh Evidence and New Points of Law

8.1 Where an application is made by a party to an appeal to put in, at the hearing of the appeal, any document which was not before the Employment Tribunal, and which has not been agreed in writing by the other parties, the application and a copy of the documents sought to be admitted should be lodged at the EAT with the Notice of Appeal or the respondent’s Answer, as appropriate. The application and copy should be served on the other parties. The same principle applies to any oral evidence not given at the Employment Tribunal which is sought to be adduced on the appeal. The nature and substance of such evidence together with the date when the party first became aware of its existence must be disclosed in a document, where appropriate a witness statement from the relevant witness with signed statement of truth, which must be similarly lodged and served.

8.2 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.

8.3 A party wishing to resist the application must, within 14 days of its being sent, submit any representations in response to the EAT and other parties.

8.4 The application will be considered by the Registrar or a judge on the papers (or, if appropriate, at a PH) who may determine the issue or give directions for a hearing or may seek comments from the employment judge. A copy of any comments received from the employment judge will be sent to all parties.

Employment Appeal Tribunal – Practice Direction 2008 10

8.5 If a respondent intends to contend at the FH that the appellant has raised a point which was not argued below, the respondent shall so state:

8.5.1 if a PH has been ordered, in writing to the EAT and all parties, within 14 days of receiving the Notice of Appeal;

8.5.2 if the case is listed for a FH without a PH, in a respondent’s Answer.

In the event of dispute the employment judge should be asked for his/her comments as to whether a particular legal argument was deployed.

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The issues of diligence probably won't be a factor unless you get through to a full hearing. The immediate issue for you is to convince the Oral Hearing Judge within about half an hour or so that it is genuinely fresh evidence and that the tribunal did not have a real chance to see it because of XYZ. The EAT will want to knoiw why you did not demand the disclosure if you knew it existed. Read carefully the written reasons of the judgment in this to see whether it is dealt with at all, for example, "The claimant said he did inform HR at an early date, but we do not accept he did".

 

If so, then the fact found, as above, cannot be revisited unless you can argue perversity (i.e., that no other reasonable tribunal could have come to that conclusion). Unfortuately the tribunal are allowed to form completely wrong conclusions from the facts or lack thereof. They have a lot of leeway.

 

Read what the judgment says very carefully, because that is what the EAT will be doing. They will be looking to see if there is any defect. If the ground is covered, then they won't much care if the facts are true or not.

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