Tchantchou v The Co-Operative Group Ltd

An Employment Tribunal may exclude oral evidence about other employees’ grievances where documentary records of those grievances, their handling and their outcomes can provide the evidential basis on which an inference of discrimination is invited. The exclusion does not prevent relevant documentary material being considered.

Whether named employees are proper comparators is ordinarily a factual issue for the full hearing. A case-management judge should not remove an agreed comparator issue merely because the respondent disputes comparability; the respondent may instead contend that a hypothetical comparator is required.

A Tribunal may revisit a hearing estimate when case-management rulings materially reduce the proposed oral evidence. The estimate must nevertheless allow realistic time for necessary pre-reading.

The Claimant appealed specified case-management rulings made by Employment Judge Hughes in proceedings alleging direct race discrimination and victimisation. The claims concerned, among other matters, suspension, disciplinary steps, and the proposed comparison with Mr Simpson and Mr Murdoch.

The Employment Judge prohibited the Claimant from calling colleagues to give oral evidence about their own grievances against the Respondent, deleted the comparator issue from an earlier agreed list of issues, and reduced the estimated hearing from 17 days to eight days plus one non-sitting day.

The appeal concerned whether those directions lawfully controlled the evidence and issues, and whether the revised hearing estimate was realistic.

1. Appeal allowed in part. The Employment Appeal Tribunal upheld the exclusion of oral evidence from colleagues about the substance of their own grievances and discrimination complaints. Their complaints had been or were being addressed in separate proceedings. The Claimant could nevertheless rely on relevant documentary records of grievances, complaints, processes and outcomes as material from which an adverse inference might properly be invited. Further case management could determine the contents of any bundle.

2. The deletion of the issue concerning Mr Simpson and Mr Murdoch was erroneous. The earlier Employment Judge had correctly treated their status as comparators, or the possible use of their treatment as evidence supporting an inference, as a factual matter for the full hearing. The existence of the agreed issue did not require acceptance of its factual premise. The Respondent remained entitled to argue that neither was a proper comparator and that a hypothetical comparator should instead be constructed.

3. The Employment Judge was entitled to reconsider the 17-day estimate after excluding the proposed additional oral evidence from both sides. However, eight days plus one non-sitting day did not adequately allow for the volume of documentation. The estimate was varied to ten days plus one non-sitting day, including two days for Tribunal pre-reading.

• Employment Appeal Tribunal: Appeal allowed in part. The comparator issue was restored and the hearing estimate was varied to ten days plus one non-sitting day. The restriction on oral evidence from colleagues about their own grievances was upheld.
• Employment Tribunal: Employment Judge Hughes made the challenged case-management directions on 2 February 2016.
• Employment Tribunal: Employment Judge Harding had previously agreed a list of issues and ordered deposits in respect of the direct discrimination and victimisation claims.