Omooba v Michael Garrett Associates Ltd (t/a Global Artists) & Anor

An Employment Tribunal has a broad procedural discretion to control evidence and hearing arrangements. Expert opinion evidence requires permission and should be admitted only where it is reasonably required to resolve the proceedings, assessed consistently with the overriding objective.

Relevance alone does not compel admission. The tribunal may exclude evidence whose contribution is marginal, disproportionate, insufficiently expert or impartial, or directed to matters outside the issues. Appellate intervention in such case-management decisions is confined to legal or discretionary error; it is not enough that another tribunal might have decided differently.

A tribunal should not determine the objective correctness of religious doctrine. It may decide protected-belief issues from the claimant’s evidence and the applicable legal principles without expert theological evidence.

The claimant, an actress, brought discrimination, harassment, indirect discrimination and contractual claims against her former agent and theatre employer after the termination of her agency and acting contracts. Her claims relied on her Christian religion and stated religious beliefs.

Employment Judge Elliott made two case-management decisions. She directed that the final hearing take place in person rather than remotely, and refused permission for reports from a theatre expert and an expert in Christian doctrine.

The claimant’s proposed appeals failed the rule 3(7) paper sift. At this rule 3(10) hearing, the Employment Appeal Tribunal considered whether either proposed appeal disclosed reasonable grounds to proceed.

1. The rule 3(10) application was refused. Neither proposed appeal disclosed reasonable grounds. The decisions challenged were orthodox exercises of the Employment Judge’s case-management discretion.

2. The direction for an in-person hearing was plainly within the Employment Judge’s discretion. She was entitled to attach weight to open justice, public and press access, the need for extensive cross-examination, credibility issues and the practical conduct of a contentious ten-day hearing. A party-operated website was also a legitimate concern. The possibility of future pandemic restrictions did not provide a basis for appealing an order which all parties accepted was presently practicable.

3. Under rule 41 of the Employment Tribunal Rules, the tribunal may regulate its procedure and decide, rationally and on principle, whether evidence should be admitted. Following [2001] IRLR 324 and [2019] UKEAT/0114/19/JOJ, expert evidence requires permission and is restricted to that reasonably required to resolve the proceedings. The Employment Judge applied that correct test.

4. Relevance is not conclusive. The tribunal may exclude relevant material for proportionality, lack of expertise or independence, time, cost, complication and the overriding objective. A case-management appeal succeeds only for an error of law or a discretionary error of the kind described in [1999] IRLR 184; the appellate tribunal must not substitute its own view.

5. The proposed theatre report was not shown to be from an expert with relevant experience, and it did not present a balanced range of expert opinion. The Employment Judge was entitled to regard parts of it as advocacy rather than objective expert assistance.

6. The theological report was not reasonably required. The claimant’s religion and principal beliefs were agreed. It was not for the tribunal to assess Christian doctrine or the objective validity of belief, consistently with [2005] 2 AC 246. The remaining disputed questions could be resolved through the claimant’s evidence, cross-examination and legal submissions. The report also did not provide a proportionate analysis of group disadvantage or justification.

• Employment Appeal Tribunal: The claimant’s rule 3(10) application to proceed with two proposed appeals was refused.

• Employment Tribunal: Employment Judge Elliott ordered an in-person final hearing and refused permission for the claimant to adduce two expert reports. The proposed appeals had already failed the rule 3(7) paper sift.