Health & Safety Executive v M Jowett

The Employment Appeal Tribunal allowed the Health and Safety Executive's appeal against a case management order of Employment Judge Ayre which excluded as inadmissible documents from the claimant's earlier period of employment. The judge misdirected herself by failing to apply the established approach to assessing future loss of earnings (as explained in Software 2000 and Abbey National v Chagger) and the guidance in HSBC Asia about preferring to leave marginal admissibility questions to the tribunal of fact. The exclusion deprived the respondent of a fair opportunity to adduce evidence and cross-examine the claimant about the realistic prospect that his notional employment (had it commenced in 2019) would not have lasted the full five years claimed. The Employment Appeal Tribunal found the decision also perverse in the circumstances and substituted an order that the documents are admissible and may be relied upon at the remedy hearing. The judge treated data protection concerns as of limited weight; the ICO correspondence did not require exclusion.

Background and parties: The claimant alleged that the respondent's withdrawal of an offer of employment as Trainee Health and Safety Inspector in February 2019 amounted to disability discrimination. The Employment Tribunal upheld liability and the matter proceeded to a remedy hearing. The claimant sought five years' loss of future earnings. The respondent wished to rely on approximately 45 documents from the claimant's earlier period of employment (2008–2011) to show a realistic prospect that he would not have remained in post for the whole five years.

Procedural posture: At a preliminary hearing Employment Judge Ayre ruled those documents inadmissible (Order dated 10 June 2021). Permission to appeal to the EAT was granted by Bourne J (order sealed 12 July 2021). The EAT heard the appeal on 18 February 2022.

Nature of the application / relief sought: The appeal sought to overturn the ET’s interlocutory exclusion of contemporaneous documents from the claimant’s previous employment so that the respondent could rely on them at the remedy hearing when the tribunal must assess loss of future earnings.

Issues framed:

• Whether the Employment Judge misdirected herself in law by failing to apply the established authorities (including Software 2000, Abbey National v Chagger and HSBC Asia) on assessing future loss and on the admissibility of potentially marginal evidence.
• Whether the exclusion was perverse in all the circumstances.
• Whether data protection concerns required exclusion of the documents.

Reasoning and decision: The EAT held that the EJ erred by treating relevance as requiring proof on the balance of probabilities and by failing to recognise that tribunals must assess chances (percentages) where appropriate, relying on Software 2000 and Abbey National v Chagger. The EAT also held the EJ had not followed HSBC Asia which advises caution about interlocutory exclusion of evidence that is arguable and better assessed at the substantive hearing. The EJ further failed to take into account that exclusion would deprive the respondent of the ability to present its case on loss of earnings; admitting the documents would not have caused undue prejudice or disruption. Data protection points, based on ICO correspondence, were of limited weight and did not require exclusion. The appeal was allowed and the EAT substituted an order that the documents are admissible and may be relied upon by both parties at the remedy hearing.

Appeal allowed. The Employment Judge misdirected herself by failing to apply the established approach to assessing future loss (Software 2000; Abbey National v Chagger) and the guidance in HSBC Asia about reserving marginal admissibility issues for the tribunal of fact; her interlocutory exclusion of contemporaneous documents was therefore legally wrong and, on the facts, perverse. The EAT substituted an order that the documents are admissible and may be relied upon at the remedy hearing. Data protection concerns did not require exclusion.

Employment Judge Ayre made a case management order dated 10 June 2021 excluding documents from the claimant's earlier employment. Permission to appeal to the Employment Appeal Tribunal was granted by Bourne J by order sealed 12 July 2021. The EAT heard the appeal and issued this judgment, neutral citation [2022] EAT 151 (heard 18 February 2022). The merits liability judgment (ET) dated 14 October 2021 upheld direct discrimination; that judgment is not under appeal.