An appeal against the decision not to include the July 2018 meeting issue was permitted to proceed to a full hearing after a Rule 3(10) Hearing, at which the claimant was represented by ELAAS Counsel, by an Order of His Honour Judge Shanks sealed on 18 July 2024:
The simple answer to this ground of appeal is that the claimant's then Counsel, when contending that the July 2018 meeting issue should remain in the list of issues, did not assert that any decision made in the territorial jurisdiction judgments about the claimant leaving the Associate Program, and remaining in the UK primarily so that she might seek to regularise her immigration position and seek alternative employment, was not necessary to those judgments. I do not accept that there is a proper basis upon which that new point of law can be argued now, it not having been raised while the claimant was represented by Counsel and in circumstances in which it would be likely to open up new areas of enquiry: Secretary of State for Health v Rance [2007] IRLR 665 .
Further, the Employment Tribunal concluded that the claimant had not been offered a position in the real estate department. Despite the failure of the respondent to make clear the precise basis upon which the claimant's employment continued after she moved off the Associate Program, she was aware that she was no longer on the program. While the term "Accommodation Period" was terminology that the respondent applied only late in the claimant's employment, it reflected the fact that the claimant had moved off the Associate Program, there would be no further rotations and the possibility of ongoing employment with the respondent was becoming increasingly unlikely. In light of the finding of the Employment Tribunal that the dismissal of the claimant was not discriminatory, and the findings about the circumstances of her dismissal, which essentially covered the same ground as the July 2018 meeting issue; even if the July 2018 meeting issue had remained an individual allegation of direct sex and race discrimination, there is no realistic prospect that it would have been determined in the claimant's favour.
Finally, I consider that it was necessary for the Employment Tribunal to determine the basis on which the claimant remained in London in the latter part of her employment. The parties agreed that the appropriate test in respect of issue estoppel is one of necessity: Foster v Bon Groundwork Ltd [2012] EWCA Civ 252 , [2012] ICR 1027 , Caterham School Ltd v Rose [2019] UKEAT 149 19 RN.
It was necessary for the Employment Tribunal to consider the claimant's contention that she remained on the Associate Program and so might have had other rotations in other jurisdictions as opposed to the respondent's position, which was against their interests on territorial jurisdiction, that she had left the Associate Program and continued in employment in London on an ad hoc basis without any expectation of further rotations within the Associate Program. Eady J clearly accepted that these findings were material to the issues of territorial jurisdiction and, particularly, the date by which the employment relationship evolved such that territorial jurisdiction was established.
The claimant believes that the respondent deliberately planted the concept of an Accommodation Period which took root and eventually undermined her entire case. While Employment Judge Nicolle adopted the term "Accommodation Period" in some passages in the judgments, it is clear that he appreciated it was of the respondent's making and it was not the "label" that mattered but the basis upon which the claimant continued to work in London. It is in the nature of preliminary issues that they may have significant knock on consequences for the determination of a claim. The preliminary issue of territorial jurisdiction was determined after hearing evidence and full submissions. The factual findings necessary to the determination of territorial jurisdiction were thereafter binding. That is not altered by the fact that Employment Judge Nicolle sat alone when determining territorial jurisdiction and as part of a full panel when determining liability.
The first ground of appeal is dismissed.
The second case management decision challenged in this appeal relates to the exclusion of some paragraphs from the claimant's reply statement. The leading case on the exclusion of evidence in the employment law context is HSBC Asia Holdings BV and another v Gillespie [2011] ICR 192 in which Mr Justice Underhill (President) summarised the authorities at paragraph 13. His comprehensive analysis should be read in full. I shall only extract a few of the points most salient to this ground of appeal. Generally, relevant evidence should be admitted and irrelevant evidence excluded. Relevance is not an absolute concept. Marginal evidence, or evidence that is unlikely to assist the court, may be excluded on relevance grounds. Sometimes such evidence is described as not being "sufficiently" relevant. The fact that evidence is inadmissible because it is insufficiently relevant does not, however, mean that it is necessary to take steps to exclude it in every case, but there are cases where there are real advantages in ruling out irrelevant evidence before it is sought to be adduced. Early rulings on admissibility can be appropriate in discrimination complaints, particularly to avoid the risk of the essential issues being obscured in a morass of detail.
Care should be taken before excluding evidence in discrimination complaints, which are generally highly fact sensitive, but as Underhill J stated in Gillespie :
In reality, it is often claimants who suffer more from vast amounts of evidence being put before the Employment Tribunal which is, at best, of marginal relevance, and often of no relevance, because it obscures the real issues and makes it less likely that any discrimination will be uncovered. Discrimination complaints are often highly fact sensitive, but success in such complaints rests not on the quantity, but the quality, of the evidence.
The question of whether to exclude evidence is a matter of case management that can only be challenged where there is an error of law in the analysis of the Employment Tribunal or the decision is one that exceeds the generous ambit within which reasonable disagreement is possible: Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345; Canadian Imperial Bank of Commerce v Beck [2009] EWCA Civ 619 , [2009] IRLR 740 .
Both parties were permitted to serve reply statements. The Employment Tribunal permitted the introduction of parts of the claimant's reply statement but excluded some passages. The claimant's reply statement was dated 17 November 2021, relatively shortly before the liability hearing commenced on 29 November 2021. There was very limited time for any response to the allegations raised in it. The claimant contends that the reply was, in part, an attempt to respond to comments witnesses made about the respondent's commitment to equality.
The first excluded passage was in the following terms:
The Employment Tribunal held:
The decision clearly fell within the case management discretion of the Employment Tribunal. The suggestion of a "caste system", with a hierarchy of racial groups other than the claimant's, was wide-ranging, unlikely to assist in determining the claimant's complaints and risked a substantial amount of time being spent on issues of no significant relevance, such as the respondent's approach to travel arrangements.
The next excluded paragraph was 20:
The Employment Tribunal held:
This determination was also clearly well within the case management discretion of the Employment Tribunal. If the circumstances of these other employees were to be properly investigated it would have required large amounts of additional evidence. The Employment Tribunal was entitled to conclude that this would cause disproportionate disadvantage to the respondent, particularly as moving to alternative employment does not, on the face of it, suggest that the employees had been subject to discrimination. It was not suggested in the claimant's reply witness statement that the employees had made such allegations.
The Employment Tribunal did permit the claimant to introduce evidence about a "black face photograph" from the claimant's time in the Zug office. This demonstrates that the Employment Tribunal did not adopt an all or nothing approach and was alive to the possibility that evidence of matters not directly related to the claimant could be of relevance in determining her complaints. This gave the claimant an evidential basis to challenge the assertions about the respondent's commitment to equality.
The final excluded paragraph was 31:
The Employment Tribunal held:
There was no error of law in this case management decision. As the Employment Tribunal noted, the only conduct on the part of the respondent was an asserted failure to investigate by Mr McArdle. The matter could have been raised from the outset as one of the claimant's background complaints. As the respondent notes, Mr McArdle was not one of the individuals against whom the claimant brought her specific complaints.
The second ground of appeal is dismissed.