UK: Race Discrimination: New Evidence

Authors: Stephen Miller, Sophie Jackson, and Charlotte Stern

Employment Tribunal decision overturned following discovery of new evidence in discrimination case.

Mr Mayanja, a black African applicant, applied for a role with the City of Bradford and Metropolitan District Council. Mr Mayanja was informed he was the preferred candidate, subject to satisfactory references. Following receipt of the references, the Council withdrew his candidacy, saying they showed Mr Mayanja had made misleading statements in his application.

Mr Mayanja brought claims of breach of contract, race discrimination, victimisation, and harassment. Central to his case was the assertion that he had been offered the job; an allegation the Council denied. The Employment Tribunal found Mr Mayanja to be an unreliable witness, preferring the evidence of the recruiting manager, C, and dismissed all his claims. It also imposed a £2,000 costs order, concluding that Mr Mayanja had fabricated the harassment claim and knowingly misrepresented the contract claim.

After the Tribunal hearing, Mr Mayanja discovered an email from C that appeared to offer him the job. He applied for reconsideration, but the Tribunal treated the application as limited to the costs judgment only. Although the Employment Tribunal admitted the email in the interests of justice, it upheld its view that Mr Mayanja’s harassment claim was fabricated and simply reduced the costs award to £200. The Tribunal accepted C’s explanation that the email had been overlooked due to a new computer system and that she had not intended to conceal it.

On appeal, the Employment Appeal Tribunal (EAT) found that the Employment Tribunal had made an error by failing to reconsider the liability judgment in light of the new evidence. It held that Mr Mayanja could not reasonably have been expected to disclose the email earlier as the Council bore the primary responsibility for document disclosure. Crucially, the EAT noted that the Tribunal’s rejection of all Mr Mayanja’s claims was fundamentally based on its adverse credibility finding, which had relied heavily on the absence of a job offer and C’s denial.

The EAT concluded that the Tribunal’s decision was fundamentally unsafe. It set aside both the liability and costs judgments and remitted the case to a freshly constituted tribunal for a full rehearing.

Key Action Points for Human Resources and In-house Counsel

This case serves as a cautionary tale of the critical role of disclosure in employment litigation.

Employers should ensure that they:

• Keep a brief record of how candidates have been assessed against an essential skills matrix
• Note why a candidate has been rejected following interview or receipt of a reference
• Retain correspondence with candidates for a sufficient period of time to defend claims (on which see the extended time periods dealt above in part 3).

Mayanja v City of Bradford and Metropolitan District Council