33 - A Question of Fairness — Respondent Solicitor Introduces Surprise Evidence on Final Day of Tribunal

On the final day of the Bury College Employment Tribunal, a pivotal and troubling moment unfolded during the Respondent’s cross-examination of the Claimant. It revolved around whether the Claimant knew that Student A had a learning disability.

The Claimant had consistently stated throughout the disciplinary process and tribunal that he did not know Student A had a learning disability. He testified that had he known, he would have been more careful with his words.

But in a sudden shift, the Respondent’s solicitor introduced, for the first time, a new claim: that the Claimant did know, or should have known, because the student’s disability status was “on the college system” and that the Claimant had access to that system.

Surprise Evidence, No Prior Disclosure

This was the first time in the entire proceedings that this claim had been made. It had not been raised in the investigation, the disciplinary hearing, the appeal process, or in any of the documents disclosed in advance of the tribunal. Its sudden emergence, on the final day and during cross-examination, denied the Claimant any real opportunity to prepare or respond fully.

Critically, the solicitor never asked the obvious follow-up question: Did the Claimant actually access the information?

Access does not equal knowledge. The fact that someone has access to a system does not mean they have reviewed or even know how to locate specific data on it, particularly in a busy educational environment where not all staff routinely consult student profiles unless required.

By leaving the implication hanging, that the Claimant must have known, the solicitor created a damaging innuendo without evidence or clarity. The Claimant, caught off guard by this new line of attack, stuck to his consistent position that he did not know, but was unable in the moment to rebut the suggestion more firmly by stating that he had not accessed the information.

Why This Matters to the Judge

Tribunal rules and principles of natural justice expect that all relevant evidence is disclosed in good time, particularly if it is to be relied upon in questioning or in support of a party’s case. Introducing new claims at the final hour, especially without notice or documentary backing, risks unfairly prejudicing the other party.

In this case, the introduction of speculative evidence, without proof that the Claimant accessed the data, served more to undermine the fairness of the process than to clarify the facts.

Moreover, the tactic was particularly striking in a tribunal where much of the case has revolved around interpretations of fairness, procedural integrity, and selective treatment. For the Respondent to introduce a new claim without the opportunity for the Claimant to respond properly may add to the Judge’s growing concerns about whether the overall process was even-handed.

If the College genuinely believed the Claimant had accessed this information, they had months to include that in the disclosure process and question him accordingly. Instead, they waited until the end, casting a shadow over both their approach to evidence and their respect for due process.

The judge may now have to weigh whether this moment, and others like it, reflect a deeper issue: Was this a fair process, or one shaped by tactics, surprise, and assumptions rather than transparency and substantiated fact?

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