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.

Coarse Language in the Workplace – ET Upholds Harassment Claim

Even if the kind of coarse language used in traditionally male-dominated workplaces was once acceptable, it certainly is not today. An Employment Tribunal (ET) made that point in awarding substantial damages to an office administrator who was harassed by her foul-mouthed line manager. The woman worked at a lambskin processing plant, next to an abattoir. She resigned after less than a year in the job, citing what she viewed as her manager’s unacceptable, unpleasant and harassing behaviour. She…

Employment Dispute Settlement Precludes Subsequent Victimisation Claim

The vast majority of employment cases end in compromise, thus doing away with the need for a public hearing. As a Court of Appeal ruling made plain, however, great professional care is required in drafting settlement agreements in order to ensure that they do not themselves become the focus of further dispute. The case concerned a man whose race discrimination complaint against a company for which he worked for about a month was compromised on confidential terms. He accepted a sum of money in…

Workplace Horseplay and Employers’ Responsibilities – Guideline Ruling

Irresponsible horseplay in the workplace can cause serious injury, but to what extent should employers be held indirectly – or vicariously – liable for such behaviour? The Court of Appeal considered that burning issue in a guideline case. A fitter was bending down to pick up a length of steel when a workmate placed two pellet targets on a bench close to his right ear. The workmate struck the targets with a hammer, causing a loud explosion. As a result, the fitter suffered noise-induced hearing…