Late to the party

Witness iStock 000005559204XSmall 146x219The Employment Appeal Tribunal has recently issued a ruling covering lists of issues and late evidence. Allison Cook looks at the lessons to be learned.

In North Bristol NHS Trust v Harrold the Employment Appeal Tribunal upheld the Tribunal's decision to refuse to grant the respondent's application to adjourn to call further witnesses.

The claimant, Ms Harrold, alleged that she had been subjected to direct race discrimination and that the respondent had victimised her by giving false evidence to the Nursing and Midwifery Council ("the NMC"), which had caused her to be struck off. Her claim had been amended during the litigation process.

It was clear from the Tribunal papers that the referral to the NMC was one of the key issues. However, the respondent had prepared its case on the basis of the claim as it was originally set out and had not updated its list of issues to include the referral to the NMC.

The liability hearing lasted for three days but it was only on the third day that the respondent sought to call witnesses in relation to the referral to the NMC. The Tribunal rejected the request on the basis that the respondent should have been well aware that this was a key issue and had ample opportunity to deal with it.

The Tribunal felt that there was therefore no injustice to the respondent in refusing the request at this late stage. On the contrary, to allow the respondent to adduce fresh evidence would not be fair to the claimant and the Tribunal has to concern itself with balancing the interests of the parties.

Best practice

This case highlights the importance of considering the case fully from the outset as well as keeping an up to date list of issues which is maintained and kept under review. Key decision makers should always be available to give witness evidence at the hearing and written statements should be prepared for them in accordance with the directions laid down by the Tribunal.

When deciding whether fresh evidence should be adduced, the Tribunal will apply the following test:

  • whether the evidence could have been obtained with reasonable diligence for use at the trial;
  • whether the evidence is such that, if given, it would probably have an important influence on the result of the case;
  • whether the evidence is likely to be credible and believed.

Allison Cook is a Senior Associate at Veale Wasbroughs Vizards. She may be contacted on 0117 314 5466 or by This email address is being protected from spambots. You need JavaScript enabled to view it..