M Mulumba v Partners Group (UK) Ltd & Anor

An Employment Tribunal may exclude a proposed issue where it is an attempt to reopen factual findings that were necessary to an earlier preliminary determination in the same proceedings. A represented party who did not contend at the relevant hearing that such findings were unnecessary will generally not be permitted to advance that new point on appeal.

Relevant evidence should ordinarily be admitted, but tribunals may exclude late, marginal or unpleaded material where it will not materially assist determination of the issues and would cause disproportionate inconvenience, expense, delay or oppression. Particular care is required in discrimination claims, but caution does not prevent robust case management.

The claimant brought discrimination, whistleblowing and unfair dismissal claims after her employment ended in August 2018. Earlier Employment Tribunal proceedings determined territorial jurisdiction and found that, during the latter part of her London employment, she had moved outside the Associate Program. A subsequent jurisdiction decision fixed 7 September 2017 as the date from which UK jurisdiction applied.

At the later liability hearing, the Tribunal removed a proposed allegation concerning a July 2018 meeting and excluded passages from the claimant’s late reply witness statement. The passages alleged a workplace racial hierarchy, referred to other black employees, and described an incident involving building reception staff. The appeal challenged those two case-management decisions.

1. Appeal dismissed. The Tribunal did not err by excluding the proposed July 2018 meeting issue. The claimant’s counsel had not submitted, when the issue was argued below, that the findings in the territorial-jurisdiction judgments were unnecessary. It was therefore not open to advance that new point on appeal, particularly as it would likely require further factual enquiry.

2. Those earlier findings were necessary to decide territorial jurisdiction. The Tribunal had to determine whether the claimant remained on the Associate Program, with potential further overseas rotations, or had moved outside it and remained in London on an ad hoc basis. The latter finding materially informed both jurisdiction and the date on which the employment relationship acquired a sufficient connection with Great Britain.

3. In any event, the excluded allegation had no realistic prospect of succeeding. The liability Tribunal had found that the claimant was not offered the alleged permanent real-estate role, that the dismissal was not discriminatory, and that the circumstances of termination had been considered in determining the unfair-dismissal complaint. The Tribunal’s use of the expression “Accommodation Period” did not displace its finding that the legal significance lay in the basis on which employment continued, rather than the label.

4. The Tribunal also acted within its broad case-management discretion in excluding parts of the late reply statement. Evidence may be excluded where it is insufficiently relevant or unlikely to assist, especially where admitting it would obscure the real issues or create substantial additional evidential work. Although discrimination claims require care because they are fact-sensitive, that caution does not require admission of all material.

5. The allegations of a racial hierarchy, general employment conditions and the departures of other employees introduced unpleaded matters and were unlikely to assist the pleaded complaints. Investigation would have caused disproportionate prejudice and delay. The Tribunal permissibly distinguished that material from the admitted evidence concerning a “black face photograph”. The alleged July 2017 reception incident was also a late, unpleaded specific complaint and did not itself evidence discriminatory conduct by the respondents.

• Employment Appeal Tribunal: This appeal was dismissed. The Tribunal’s decisions to remove the proposed July 2018 issue and exclude specified reply-statement passages were upheld.

• Employment Tribunal: At the liability hearing, the Tribunal excluded the proposed issue and parts of the claimant’s reply witness statement. Its liability judgment found the dismissal unfair for procedural reasons, but not discriminatory.

• Employment Tribunal: On remittal following the earlier EAT appeal, the Tribunal held that territorial jurisdiction applied to acts and omissions after 7 September 2017.

• Employment Appeal Tribunal: The respondents’ earlier appeal succeeded in part and the territorial-jurisdiction issue was remitted: [2021] I.C.R. 1501.