Health & Safety Executive v M Jowett

When assessing future loss after unlawful discrimination, an employment tribunal must evaluate the chance that employment would have ended, or would not have continued for the claimed period, absent the discrimination. It must take account of material and reliable evidence even where the assessment necessarily involves uncertainty. A failure to prove a predicted event on the balance of probabilities does not end the inquiry; a realistic prospect may require a percentage reduction.

Evidence concerning that assessment should generally be left for the tribunal determining remedy unless its admission would cause material inconvenience, expense, delay or oppression. Excluding relevant contemporaneous evidence at an interlocutory stage may improperly prevent a party from presenting its case.

The claimant obtained a job offer from the Health and Safety Executive for a Trainee Health and Safety Inspector role in 2018, but the offer was withdrawn before his proposed start date. The Employment Tribunal later upheld his complaint of perceived disability discrimination. He sought five years’ future loss of earnings at the remedy stage.

The employer wished to rely on documents from the claimant’s earlier employment in a similar trainee role, which ended in 2011. At a preliminary hearing, the Employment Judge held that the documents were inadmissible because they were at most marginally relevant. The employer appealed that case-management ruling.

1. Appeal allowed. The Employment Judge erred in excluding the documents. The remedy tribunal had to assess how long the claimant would have remained employed had there been no discrimination, and whether there was a material chance that he would not have remained for the whole five-year period claimed.

2. The assessment of future loss is predictive. Material and reliable evidence must be considered even if it cannot establish the predicted outcome on the balance of probabilities. A degree of uncertainty is inherent in the exercise. If there is a realistic prospect of earlier termination or departure, the award otherwise payable may require a percentage reduction.

3. The documents relating to the claimant’s earlier, similar employment had relevance beyond the theoretical. The reasons for his earlier resignation and the extent to which that employment indicated how a later appointment might have progressed were disputed issues for the remedy tribunal. The Employment Judge’s approach wrongly deprived that tribunal of contemporaneous material and deprived the employer of an effective means of advancing and testing its case on future loss.

4. Questions of marginal relevance will generally be better resolved by the tribunal hearing the evidence. There was no identified risk that admitting approximately 100 pages of disclosed material would disrupt the orderly progress of the proceedings. The Employment Judge failed to apply that guidance.

5. The decision was also perverse. No reasonable tribunal, properly directing itself, could conclude that the documents were so marginally relevant that they should be excluded. Any possible data-protection breach did not itself make the evidence inadmissible. The material was relevant to a significant remedy issue, any breach was limited, and redactions could be agreed.

6. The EAT substituted an order that the documents were admissible and could be relied upon by both parties at the remedy hearing.

• Employment Appeal Tribunal: allowed the employer’s appeal and substituted an order admitting the earlier-employment documents for the remedy hearing: [2022] EAT 151.
• Employment Tribunal: Employment Judge Ayre had ruled, in a case-management order dated 10 June 2021, that the documents were inadmissible. The Tribunal’s later liability judgment upheld the claimant’s perceived-disability discrimination complaint; that judgment was not under appeal.