Kalu v Brighton and Sussex University Hospitals NHS Trust & Ors

In discrimination claims, evidence of conduct beyond the acts complained of may be highly relevant. An Employment Tribunal may nevertheless exclude background evidence where it is unlikely to provide material assistance and its admission would cause inconvenience, expense, delay or oppression.

The Tribunal must assess sufficient and material relevance before exercising its case-management discretion. The Employment Appeal Tribunal should not substitute its own assessment on this essentially evaluative issue unless the decision was plainly wrong or involved an error of law. Late notice, inadequate case preparation, the need for further documents or an adjournment, and the limited significance of the claim may justify exclusion.

The Trust and consultants employed at the Royal Sussex County Hospital appealed against a decision of the Employment Appeal Tribunal. The Employment Tribunal had dismissed Dr Kalu’s claims of direct race discrimination and victimisation arising from proposed contingency arrangements for an influenza pandemic.

The Employment Tribunal had excluded detailed evidence about earlier discrimination complaints. The Employment Appeal Tribunal, by a majority, held that the exclusion involved an error of law and remitted the case for rehearing. The central issue before the Court of Appeal was whether the Employment Appeal Tribunal was entitled to interfere with the Employment Tribunal’s case-management decision.

1. Appeal allowed. Lord Justice Underhill gave the leading judgment. Lord Justice Christopher Clarke and Lord Justice Moore-Bick agreed. The decision of the Employment Tribunal dismissing the claims was restored.
2. An Employment Tribunal has a wide discretion to exclude evidence. In discrimination cases, evidence of conduct beyond the acts complained of may be highly relevant. However, where the Tribunal is satisfied that the evidence will not materially assist in deciding the issues and will cause inconvenience, expense, delay or oppression, it may, and should, exclude it. This approach was endorsed from HSBC Asia Holdings BV v Gillespie [2010] UK EAT 0417, [2011] ICR 192. Anya v University of Oxford [2001] EWCA Civ 405 illustrated the potential relevance of wider conduct, while Qureshi v Victoria University of Manchester [2001] ICR 863 illustrated the danger of disproportionate background evidence.
3. The question whether evidence is sufficiently relevant and proportionate is essentially evaluative rather than a hard-edged question of law. The Employment Appeal Tribunal may interfere only where the Employment Tribunal’s decision was plainly wrong or involved an error of law.
4. The Employment Tribunal was entitled to exclude the further details of the earlier claims. It had not excluded the fact of those claims or the different ethnic composition of the two groups of consultants. The excluded material was general, alleged no overt discriminatory conduct, concerned events more than two years earlier, and related to different matters. Its useful investigation would have required contemporary documents and further evidence.
5. The evidence was served only shortly before the hearing and the earlier matters had not been identified at the case-management discussion. Admission would probably have required an adjournment, increased expense and a longer hearing. The Tribunal was also entitled to consider that the claim had limited practical significance because the proposed arrangements were never implemented and substantial detriment was remote.
6. The Employment Appeal Tribunal majority wrongly treated the previous involvement of some respondents as making the evidence necessarily relevant and wrongly concluded that the Employment Tribunal had failed to assess relevance. The Employment Tribunal’s observation that there was no evidence that the previous claims influenced the proposals concerned causation in the victimisation claim, not the existence of evidence of racial discrimination generally.

• Court of Appeal (Civil Division) allowed the appeal and restored the Employment Tribunal’s dismissal of the claims.
• Employment Appeal Tribunal allowed one ground of appeal by a majority and remitted the case for rehearing by a fresh Tribunal. Langstaff J dissented.
• Employment Tribunal dismissed the claims after a five-day hearing.