Use of Similar Fact Evidence in Employment Proceedings – Guideline Ruling

In a criminal context, prosecutors often rely on similar fact evidence in order to show that a defendant has a propensity to behave in a particular way – but can such evidence also be deployed in employment proceedings? The Employment Appeal Tribunal (EAT) focused on that issue in a guideline…

Mar 01, 2021

The case concerned an energy broker who complained to an Employment Tribunal (ET) that unlawful deductions had been made from her wages in that she had not been paid all commissions due to her. She valued her claim at around £450,000. In resisting her claim, however, her former employer alleged that she had missold contracts and deliberately submitted inflated commission claims.

The employer sought to rely on a statement from the CEO of a subsequent employer to the effect that she had been dismissed for gross misconduct after making false commission claims. It also wished to submit evidence that, when she left a previous job, she was under investigation for allegedly claiming commissions to which she was not entitled. Following a preliminary hearing, however, the ET refused the employer permission to adduce any of that similar fact evidence.

Upholding the employer’s challenge to that ruling, however, the EAT found that the ET had taken account of an irrelevant consideration when it cited the public interest in finality of litigation as a reason for excluding the evidence. Given the lengthy procedural history of the case, and the fact that a further hearing was inevitable in any event, that amounted to a clear error of law.

The EAT had no doubt that the similar fact evidence was potentially probative of an important issue in the case. Given that the case was to be heard by a professional employment judge, rather than a jury, there was little risk of the evidence distracting the attention of the decision-maker. On the basis that there was only one correct answer to the issue, the EAT granted the employer permission to rely on the evidence at the forthcoming hearing of the woman’s claim.

Lost Your Job Due to the Pandemic? You May Have Been Unfairly Dismissed

If you are amongst the cohort of workers who have been made redundant in the wake of the pandemic and feel that you have been treated unfairly, you should contact a solicitor without delay. In one case, a bar manager who was sacked without notice received thousands of pounds in compensation. After several months on furlough, the 58-year-old man, who had been employed at a hotel for six years, was asked to return to work to prepare for reopening. A few weeks later, however, he received a letter…

Use of Discriminatory Words in the Workplace – Context Always Matters

Employers are entitled to enforce zero-tolerance policies in respect of discriminatory remarks in the workplace. As an Employment Tribunal (ET) ruling showed, however, a thorough investigation is always required prior to a dismissal, not least because words that may be utterly unacceptable in one context may not be in another. A sales manager with an otherwise blemish-free disciplinary record was summarily dismissed on grounds of gross misconduct on the basis that he had used the discriminatory…

Proving a Link Between Unfair Treatment and Discrimination Can Be Tough

It may be relatively straightforward to prove you have suffered unfair treatment at work, but establishing that such treatment results from discrimination can pose a far greater challenge. This was certainly so in an Employment Appeal Tribunal (EAT) case concerning a forklift truck driver. The man launched proceedings following two fractious confrontations between him and colleagues in the car park of the premises where he worked for a logistics company. He alleged that he was falsely and…