In this case, the EAT held that an employment tribunal had wrongly failed to reconsider its judgment dismissing an employee's claims after the employee disclosed new evidence that undermined the tribunal's finding that the employee was not a credible witness.
Facts
Mr Mayanja, who describes himself as black African, brought claims for breach of contract, race discrimination, victimisation and harassment after the City of Bradford Metropolitan District Council (the Council) decided to stop progressing his job application. Mr Mayanja asserted that he had been offered and accepted an unconditional job offer in October 2021. The Council disputed this, stating that it had made no such offer, and had only told Mr Mayanja that he was the preferred candidate, and asked for references. It had stopped progressing Mr Mayanja's application because the references revealed that he had made misleading statements in his job application.
An employment tribunal dismissed Mr Mayanja's claims, rejecting his evidence that he had received an unconditional (or any) job offer, and preferring the account of the Council's recruiting manager in all respects. The tribunal found that Mr Mayanja was not a credible witness. It later made a £2,000 costs award against him, on the basis that he had fabricated his harassment claim and acted unreasonably in constructing a false claim for breach of contract.
After receiving the tribunal's costs judgment, Mr Mayanja discovered on his computer an email from the Council which appeared to show that it had made him an unconditional job offer. Mr Mayanja therefore applied to the tribunal for reconsideration of both the liability judgment and the costs judgment. The tribunal treated his application as limited to the costs judgment. It stated that Mr Mayanja could have disclosed the email prior to the substantive hearing had he exercised reasonable diligence. It nonetheless admitted the email in evidence, noting that the Council had accepted it was credible. The tribunal accepted the Council's evidence that its failure to disclose the email was not deliberate, but was a genuine oversight due to a new computer archiving system. Accepting that the email undermined its finding that Mr Mayanja had knowingly constructed a false breach of contract claim, the tribunal reduced the costs award to £200.
The EAT upheld Mr Mayanja's appeal, setting aside both the liability and costs judgments and remitting the case to a fresh tribunal. In the EAT's view, the tribunal had erred in only reconsidering the costs judgment, when it was clear that Mr Mayanja's application sought reconsideration of both judgments. The EAT disagreed with the tribunal's finding that Mr Mayanja could have disclosed the email himself with reasonable diligence. The tribunal's case management order had placed primary responsibility for preparation of the hearing bundle on the Council, and Mr Mayanja was entitled to expect that the Council would exercise proper care and disclose relevant documentary evidence, including the job offer.
The fundamental reason for the tribunal's decision that Mr Mayanja lacked credibility was that there was no evidence of the job offer on which he relied. The tribunal had in all areas of conflict preferred the evidence of the Council's recruiting manager, who was adamant that she had not made an offer to Mr Mayanja and would not have done so because it was against the Council's policies. The EAT therefore concluded that the tribunal's decision was "built on foundations of sand" and was fundamentally unsafe in all respects because of its generalised determination on credibility.
What does this mean for employers?
This case serves as a cautionary tale for employers and a reminder of the need to undertake comprehensive searches as part of any disclosure exercise. This should include searching any email and computer archiving systems that may contain relevant documentation. As this case demonstrates, failure to disclose all relevant documents for a tribunal hearing may give rise to further litigation, with all of the time and cost burden that entails.
