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 case.

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.