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.

University Manager Succeeds in Unfair Dismissal/Disability Discrimination Claims

Redundancy processes that lack transparency or fail to pay particular regard to the position of disabled employees are highly likely to result in costly Employment Tribunal (ET) proceedings. That was certainly so in the case of a university faculty manager who lost her job in the midst of a restructuring exercise. The woman suffered from depression and general anxiety disorder and was agreed to be disabled. With a view to cutting costs and achieving greater efficiency, the university decided to…

Exemplary Sales Assistant Succeeds in Pregnancy Discrimination Claim

There can be few things more harmful to an employer’s reputation than a finding that it has discriminated against a worker for being pregnant. In a damning decision, an Employment Tribunal (ET) ruled that an exemplary sales assistant was dismissed because of her employer’s reluctance to shoulder the cost of her maternity leave. The woman was a model employee who worked long hours, six days a week, for a retailer that paid her the minimum wage. During the 13 months she held her job, she was…

ET Failed to Consider Context in Victimisation Claim, EAT Rules

The Employment Appeal Tribunal (EAT) has upheld a woman’s appeal against the dismissal of her complaint of victimisation, finding that the Employment Tribunal (ET) had adopted too narrow a definition of what could constitute a protected act and had not sufficiently analysed the context in which the complaint that was said to be a protected act was made. The woman had worked for a pharmacy business since 2001. In 2018 she moved to another of the business’s stores, where she was the only black…