Kalu v Brighton & Sussex University Hospitals NHS Trust & Ors

In a direct race-discrimination claim, the selection of a comparator must serve the statutory inquiry. A tribunal cannot treat as a material difference the very location-based distinction imposed by the challenged policy where that distinction is said to operate as a surrogate for race.

However, a finding that race was not the reason for the treatment can make comparator issues academic. An Employment Tribunal may exclude marginal or disproportionate evidence, but it must first assess whether evidence is sufficiently and materially relevant. Excluding relevant background evidence without that evaluation, then treating the claimant as having adduced no evidence of racial motivation, is an error of law.

The claimant, a black consultant at the Haywards Heath site of the respondent NHS Trust, challenged a proposed pandemic staffing policy. The policy could have required a Haywards Heath consultant to cover registrar duties while consultants at the Brighton site did not do so. He alleged direct race discrimination and victimisation under the Race Relations Act 1976.

The Employment Tribunal dismissed the claims. It rejected the Brighton consultants as comparators, found that race was not a factor in the policy, and excluded substantial parts of the claimant's proposed background evidence. Following a restricted appeal process, only the comparator and evidential-ruling grounds proceeded to a full appeal.

The central issue was whether the Tribunal had erred in its comparator analysis and in excluding evidence relevant to racial motivation and victimisation.

1. Appeal allowed. The majority held that the Employment Tribunal's exclusion of relevant and material evidence was an error of law. Its conclusions on the discrimination claims were therefore vitiated.

2. The Tribunal's comparator reasoning was unsound. Under section 3(4) of the Race Relations Act 1976, relevant circumstances must be identified by reference to the purpose of the comparison. Although workplace location can in principle be relevant, it could not logically be treated as a material difference here. The impugned policy itself made location the distinction said to create the disadvantage and, on the claimant's case, location operated as a surrogate for race.

3. Nevertheless, if the evidential ruling had stood, the Tribunal's unchallenged factual finding that race was not the reason for the policy would have answered the direct-discrimination claim. The comparison may assist in deciding the ultimate question, but it does not replace the inquiry into the reason for the treatment: Shamoon, Ladele and Chondol.

4. An Employment Tribunal has a broad case-management discretion to exclude evidence that is only marginally relevant or would cause disproportionate delay, expense or burden. In discrimination cases, prior incidents may nevertheless illuminate whether the pleaded acts were racially motivated. The governing question is whether the evidence is of sufficient and material relevance.

5. The majority concluded that the Tribunal had excluded all evidence concerning the claimant's earlier dispute with the respondents without evaluating the relevance of the evidence in paragraphs 14–18 of his witness statement. That evidence could bear on direct discrimination and victimisation, without requiring admission of the whole historic case bundles. The claim was remitted for determination afresh by a differently constituted Tribunal if not resolved by the parties.

• Employment Appeal Tribunal: appeal allowed on the evidential ground. The Employment Tribunal's dismissal was vitiated and the claim was remitted for fresh determination.
• Employment Tribunal at Brighton: dismissed the claimant's direct race-discrimination and victimisation claims on 13 June 2011. It had excluded portions of his proposed background evidence at the outset of the hearing.