Andorful v Reliance Security - Admitting new evidence at preliminary stage of appeal is not conclusive as to whether it establishes error of law [2009] EAT

The Reading Employment Tribunal dismissed Mr Andorful's claims of race discrimination. He appealed to the EAT and HHJ Peter Clark refused to allow the appeal to proceed, detecting no arguable error of law. However, the Reading tribunal then gave judgment in the case of a colleague of Mr Andorful (a Mr Atiadevey). At a Rule 3(10) hearing Mr Andorful brought this judgment to the attention of HHJ McMullen, who decided that the appeal could proceed and that new evidence, derived from Mr Atiadevey's case, should be admitted.

The question at the full appeal was how the EAT should treat such new evidence when it has been admitted by a different division prior to the substantive appeal hearing. HHJ Hand identified three possible approaches:

  • either we are bound to find that this is important evidence because that is what HHJ McMullen has already found;
  • secondly, and alternatively, whilst we are not bound by what was decided by the learned judge on the rule 3(10) hearing, we ought to give serious weight to it;
  • thirdly, the matter is completely open.

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