Can New Evidence Be Introduced on Appeal to the Employment Appeal Tribunal?

Only in very limited circumstances. The Employment Appeal Tribunal is not a rehearing. It considers the case on the material that was before the Employment Tribunal. The general rule is that new evidence cannot be introduced on appeal. The exception is governed by the principles established by the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, as applied in the employment context.

To introduce new evidence on appeal, the applicant must satisfy three conditions: first, the evidence could not with reasonable diligence have been obtained for use before the Employment Tribunal; second, the evidence would probably have had an important influence on the result of the case, though it need not be decisive; and third, the evidence is apparently credible, though it need not be incontrovertible. All three conditions must be met. The Employment Appeal Tribunal applies these conditions strictly.

Legal Framework

The Ladd v Marshall Principles

The three-part test from Ladd v Marshall [1954] 1 WLR 1489 governs the admission of fresh evidence on appeal in civil proceedings generally, and the Employment Appeal Tribunal applies the same principles. The conditions are cumulative: all three must be satisfied.

The first condition — reasonable diligence — asks whether the evidence could have been obtained for the original hearing with reasonable effort. If the evidence was available at the time of the Employment Tribunal hearing but was not adduced, this condition will not be met. The burden is on the applicant to explain why the evidence was not available.

The second condition — probable influence on the result — requires the applicant to show that the evidence would probably have made a difference to the outcome. Evidence that is merely corroborative of evidence already before the tribunal, or that goes to a peripheral issue, is unlikely to meet this condition.

The third condition — apparent credibility — requires the evidence to be apparently credible. It need not be incontrovertible, but it must be of such a character that it would be capable of belief.

Application in the Employment Context

In Wileman v Minilec Engineering Ltd [1988] ICR 318, the Employment Appeal Tribunal confirmed that the Ladd v Marshall principles apply to appeals from the Employment Tribunal. The EAT has consistently applied these principles in subsequent cases and treats them as the governing framework for applications to adduce fresh evidence.

There are cases in which the Employment Appeal Tribunal has adopted a slightly more flexible approach, particularly where the fresh evidence goes to an issue of procedural fairness or bias that could not have been identified before the hearing concluded. However, these cases are exceptional and do not displace the general requirement to satisfy the Ladd v Marshall conditions.

Evidence of What Occurred at the Hearing

A separate category concerns evidence of what occurred at the Employment Tribunal hearing itself, such as evidence of comments made by the judge that are said to demonstrate bias or procedural unfairness. This type of evidence falls outside the strict Ladd v Marshall framework because it relates to the conduct of the hearing rather than the merits of the case. The Employment Appeal Tribunal may admit such evidence where it is relevant to a ground of appeal based on bias or procedural unfairness.

Where a party wishes to rely on evidence of what occurred at the hearing, the proper course is usually to request the Employment Judge's notes of evidence or to provide a witness statement setting out what is alleged to have occurred. The Employment Appeal Tribunal may then request the judge's comments on the allegations.

Common Errors and Misconceptions

The most common misconception is that the appeal is an opportunity to produce evidence that was not put before the Employment Tribunal. It is not. The Employment Appeal Tribunal is not a forum for a second attempt at the case with better evidence. The Ladd v Marshall conditions are deliberately restrictive and are designed to prevent parties from holding back evidence for the appeal.

A related error is to believe that evidence discovered after the Employment Tribunal hearing will automatically be admitted. The first Ladd v Marshall condition requires the applicant to show that the evidence could not have been obtained with reasonable diligence for the original hearing. Evidence that existed at the time but was not looked for, or evidence that was available but was not thought to be relevant, will not satisfy this condition.

Some parties attempt to use fresh evidence as a vehicle for re-arguing the facts. They produce evidence that they say shows the Employment Tribunal's findings were wrong. Unless this evidence satisfies the Ladd v Marshall conditions, it will not be admitted, and the appeal will be determined on the material that was before the Employment Tribunal.

Another misconception is that fresh evidence is routinely admitted in cases of perversity. It is not. While the Employment Appeal Tribunal may in some perversity cases be willing to consider the evidence that was before the Employment Tribunal (which is different from fresh evidence), this does not extend to admitting evidence that was not before the tribunal.

Practical Application

Applications to adduce fresh evidence on appeal are made by way of a formal application to the Employment Appeal Tribunal, usually supported by a witness statement exhibiting the evidence and explaining why the Ladd v Marshall conditions are met. The application should be made at the earliest opportunity and should not be left to the hearing.

In practice, the first condition — reasonable diligence — is the most common barrier. The Employment Appeal Tribunal expects parties to have made reasonable efforts to obtain all relevant evidence for the original hearing. A party who discovers a relevant document after the hearing must explain why it was not available before. The explanation must be specific and credible.

Where the fresh evidence relates to events that occurred after the Employment Tribunal hearing — for example, evidence of subsequent treatment that is said to corroborate a pattern of discrimination — the Ladd v Marshall framework may still apply, but the first condition may be more readily satisfied because the evidence did not exist at the time of the hearing.

Strategic considerations are important. An application to adduce fresh evidence that fails may undermine the appeal by suggesting that the appellant is attempting to re-argue the facts rather than relying on a genuine error of law. The decision to make such an application should be carefully considered.

Process and Timing

The application should be made by way of a formal application notice, supported by a witness statement that exhibits the proposed evidence and addresses each of the three Ladd v Marshall conditions. The application should be made as early as possible in the appellate process and should not be left to the hearing.

The Employment Appeal Tribunal will determine the application either on the papers or at a hearing. If the evidence is admitted, the EAT will decide what weight to give it and how it affects the appeal. If the evidence is refused, the appeal proceeds on the basis of the material that was before the Employment Tribunal.

Where the appeal also includes substantive grounds of appeal based on errors of law in the Employment Tribunal's reasoning, the fresh evidence application is dealt with alongside those grounds. It is important that the appeal does not depend entirely on the admission of fresh evidence, because if the evidence is excluded, the appeal may have no remaining basis.

When to Seek Specialist Counsel

Applications to adduce fresh evidence in the Employment Appeal Tribunal are technically demanding. A specialist can assess whether the proposed evidence is capable of satisfying the Ladd v Marshall conditions, draft the supporting application, and present the argument to the EAT. Where the evidence does not meet the conditions, a specialist will advise against making the application, thereby avoiding the negative impression that an unsuccessful application can create.

Where a party has evidence that they believe is important to the appeal, specialist advice should be sought at the earliest opportunity to determine whether the evidence is admissible and, if so, how best to present the application.

Frequently Asked Questions