Noorani v Merseyside Tec Ltd

An Employment Tribunal has a broad discretion whether to issue witness summonses. Evidence is not admissible merely because it may have some relevance. The Tribunal may restrict collateral evidence where its probative value is outweighed by the risk of disproportionate delay, expense, or satellite issues.

An appellate tribunal must respect such case-management decisions. Intervention is justified only on recognised Wednesbury grounds, including an error of law, disregard of principle, material factual misunderstanding, consideration of irrelevant matters, failure to consider relevant matters, or a conclusion outside the generous ambit of reasonable disagreement.

The claimant brought proceedings before an Employment Tribunal alleging racial discrimination and victimisation arising from disciplinary warnings, demotion and dismissal. Shortly before the hearing, he sought numerous witness summonses, principally for employees whom he alleged had themselves been racially discriminated against.

The Employment Tribunal issued one summons and refused the remaining requests, considering that the proposed evidence concerned collateral matters and was insufficiently relevant to the central issues. The Employment Appeal Tribunal held that the discretion had not been exercised and remitted the matter to a differently constituted Tribunal. The claimant appealed, and the employer cross-appealed in relation to the remission. The central issue was whether the Employment Tribunal had lawfully exercised its discretion.

1. Appeal allowed. The Employment Tribunal’s decision was restored. Lord Justice Henry gave the judgment, with Lord Justice Thorpe and Lord Justice Beldam agreeing.
2. The Employment Tribunal had exercised, rather than failed to exercise, its discretion. Its correspondence identified the principal issues, focused on the claimant’s conduct and dismissal, and explained why evidence concerning alleged discrimination against other employees would involve collateral inquiries or a trial within a trial.
3. Relevance is a matter of degree. A tribunal may balance the potential probative value of evidence against the time required, the danger of manufactured or distracting issues, and the need to keep proceedings proportionate. This discretion includes deciding whether to issue witness summonses, grant an adjournment, or order a preliminary issue.
4. Employment Tribunals have no express fetter on their discretion to issue witness summonses under paragraph 4(1)(a) of the Industrial Tribunal Constitution (Rules of Procedure) Regulations 1993. They are not required to admit every item of evidence that might be relevant. If circumstances change during the hearing, the Tribunal may revisit an earlier refusal and, if necessary, adjourn.
5. Appellate intervention is limited. A first-instance discretionary decision may be challenged only where the Tribunal acted under a mistake of law, disregarded principle, misunderstood the facts, considered irrelevant matters, failed to consider relevant matters, or reached a conclusion outside the generous ambit within which reasonable disagreement is possible.
6. The Employment Appeal Tribunal had applied an unduly pedantic interpretation to the Tribunal’s correspondence. No error of law or impermissible exercise of discretion had been established. The order included appeal allowed, restoration of the Employment Tribunal’s decision, legal aid taxation of the respondent’s costs, and refusal of leave to appeal to the House of Lords.

• Court of Appeal (Civil Division): Noorani v Merseyside Tec Ltd [1998] EWCA Civ 1567. Appeal allowed and the Employment Tribunal’s decision restored.
• Employment Appeal Tribunal: allowed the claimant’s appeal on the basis that the Employment Tribunal had failed to exercise its discretion, and remitted the matter to a differently constituted Tribunal.
• Employment Tribunal: dismissed the racial-discrimination claim.