The Employment Appeal Tribunal has recently handed
down a decision confirming the strict approach
it takes to allowing an appeal on grounds of fresh
evidence.
The employer dismissed an employee as it was suspected
that he was planning to leave and join the opposition
and was trying to poach customers. That was said to
amount, not surprisingly, to a fundamental breach of
trust and confidence.
However, at the tribunal hearing, the employer had
no real evidence of the poaching, which it explained
on the grounds that it did not know it was expected
to obtain such evidence. They had seemingly failed
to obtain satisfactory legal advice in order to provide
a defence against the claim for unfair dismissal.
Following the decision from the tribunal, the employer
then obtained four witness statements which, if accepted,
would be fairly overwhelming evidence that the ex-employee
had been approaching clients to solicit work (whilst
still employed).
However, the Employment Appeal Tribunal held that
this did not enable the employer to have a second bite
at the cherry. Whilst clearly credible and relevant,
there was no proper explanation for not having obtained
the evidence first time round. Neither ignorance, nor
possibly incompetent advice from the employer's employment
consultants, came close to being sufficient.
Simple steps you can take:
•
Include appropriate restrictive covenants in employment
contracts.
•
Obtain evidence, in all its forms, to support your
suspicions as early as possible.
•
Follow the statutory procedures to ensure a fair dismissal.
•
Engage appropriate legal support to provide a comprehensive
defence at tribunal if required.
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