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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> HSBC Asia Holdings BV & Anor v Gillespie  UKEAT 0417_10_1911 (19 November 2010)
Cite as:  UKEAT 0417_10_1911,  ICR 192,  IRLR 209
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|At the Tribunal|
|On 14 October 2010|
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(1) HSBC ASIA HOLDINGS B.V.
(2) HSBC HOLDINGS PLC
Transcript of Proceedings
|For the Appellants||MR THOMAS LINDEN
(one of Her Majesty's Counsel)
Allen & Overy
One Bishops Square
|For the Respondent||MR DAVID CRAIG
Farrer & Co LLP
66 Lincoln's Inn Fields
PRACTICE AND PROCEDURE - Admissibility of evidence
PRACTICE AND PROCEDURE - Case management
Respondent in substantial discrimination claim seeking directions at a case management discussion (a) that evidence which the Claimant sought to call avowedly by way of "background" be excluded as inadmissible because it was of no real relevance and (b) that only sample claims be proceeded with at the forthcoming hearing Judge declines to make either direction, stating as regards (a) that on the authorities he had no power to do so
As regards (a), held that the Judge had been wrong to hold that he had no such power and that in the circumstances the evidence in question should be excluded Discussion of applicable principles
As regards (b), appeal not pursued, but some guidance given as to when proceeding by way of sample claims might be appropriate
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(1) The matters complained of all took place during the period that the Claimant was working in the Group Risk Department, i.e. from 2006.
(2) A central part of the claim introduced under the heading "the Claimant's employment in Group Risk" - is a complaint of sexual harassment by colleagues in that department. The structure of this part of the claim is as follows. Paras. 15 and 16 plead generally that the Claimant was subjected to a continuing course of sex discrimination and sexual harassment, including in particular an allegation there was in Group Risk a boorish "boys' club" culture in which lewd and offensive remarks about women were continually made: this is said to have produced an intolerable working environment for the Claimant as a woman. Paras. 17 and 18 then plead that HSBC condoned that culture. Para. 19 makes some general allegations about the distribution of lewd e-mails. Finally, at para. 20 some 37 particular incidents of offensive behaviour are pleaded. A number of male colleagues are named, most prominently a Mr. Pendrill, a Mr. Insua and a Mr. Raymen. The paragraph is preceded by words purporting to reserve the right to give further particulars of the claim in due course.
(3) Para. 24 sets out a number of further acts of sexual harassment which are said to have occurred while the Claimant was working in the Far East between 1991 and 2001, together with one incident which occurred while she was in Chiswick. These are pleaded as being relied on by way of "background": the status of these allegations is the main point in the appeal, and I deal with them more fully below.
" they are not probative (or in the alternative sufficiently probative) of the acts of discrimination alleged by the Claimant they are out of time, and the inclusion of the allegations is disproportionate and contrary to the overriding objective."
HSBC also raised, and the Claimant in due course answered, an extensive Request for Further Information.
"1. Whether on the grounds of [admissibility] those matters raised at paragraph 24 of the Details of Claim should be allowed to proceed.
2. [An issue as to whether certain of the pleaded complaints were out of time and, if so, whether time should be extended.]
3. Whether the Claimant should reduce her claims of harassment and sex discrimination set out in paragraph 9 of the draft list of issues (should they be admissible) by way of relying on sample acts of the matters complained of."
A full hearing was directed to commence on 24 January 2011, with an estimate of 40 days.
(1) held that the matters pleaded at paragraph 24 of the Details of Claim were admissible;
(2) held that the time question should be determined at the full hearing; and
(3) declined to direct the Claimant to proceed by way of sample claims only.
"The Claimant will further rely upon acts of sexual harassment that she was subjected to when posted to other departments before she moved to the Group Risk Department in London as background in relation to her claims of sexual harassment in that department, as they reflect a culture within the organisation in which discrimination is wide-place and/or in which it is tolerated or not properly tackled."
There follow five sub-paragraphs which I can summarise as follows:
(1) While she was in Kuala Lumpur and Penang in 1991/1992 various sexist comments, including one made by the then Chief Executive Officer of HSBC India, Mr Dobby (who I am told retired in 1994), are said to have been reported to her. Mr Davies, the Head of Human Resources in Malaysia, is said to have told the Claimant that this was representative of the culture among IMs. It is also pleaded that clients were taken to karaoke clubs at which the men in the party were entertained by hostesses, which the Claimant found embarrassing and uncomfortable.
(2) While she was in Bombay in 1992/1993 Mr Dobby is said to have referred to the Claimant as "Bambi" and made other sexist though, I should in fairness make clear, not in any way lewd - comments to her.
(3) A number of different allegations are made about the Claimant's experience in Hong Kong in 1993/1994. They include allegations of exclusion from important events, expressly or implicitly because she was a woman (on one occasion by her line manager, Mr Wilson); the use by unnamed colleagues of the name "Barbie"; one incident of sexually suggestive conduct towards her by a named colleague; and an episode of, to put it shortly, "stalking" with one particularly gross feature - by an unnamed IM.
(4) When the Claimant was in Hong Kong in 2000, she is said to have been excluded from a presentation on Islamic banking and to have been told to answer the phones while her colleagues (all men) attended the presentation.
(5) When the Claimant was at Chiswick High Road in 2003/4, her manager is said to have suggested that they should discuss her next review over dinner.
I have not in that summary identified all the colleagues who are pleaded by name, either as perpetrators of conduct complained of or as having reported such conduct to the Claimant. There are several, but there are also a number who are mentioned but not named. Some more names were given in the Further Information. Most of the individuals named have retired or left HSBC.
"Mr. Linden argues that these matters are of some considerable vintage and are not particularly of assistance to the Claimant in the case that she is putting. He suggests that the Respondent will be put to considerable disadvantage in having to go back to find information over such a considerable period of time. If evidence has to be given in these matters up to 15 witnesses will have to be called, who might otherwise be unnecessary. He suggests that there will be very substantial evidence on the Claimant's case from what happened in the period to which the harassment complaints relates which makes it unnecessary to call evidence. There will be prejudice to the Respondent in this and a very considerable cost involved."
The Judge goes on to recite the authorities to which he was referred by Mr. Linden and those relied on by way of response by Mr. Craig. These were, in date order, Chattopadhyay v. Headmaster of Holloway School  ICR 132; Noorani v. Merseyside Tech Ltd  IRLR 184; Carter v. Stakis Plc (EAT/1016/99); O'Brien v. Chief Constable of South Wales Police  2 AC 539; Beazer Homes Ltd v. Stroude The Times 28.4.05 ( EWCA Civ 265); McBride v. Standards Board for England (UKEAT/0092/09); and Franco v. Bowling & Co. (UKEAT/0280/09).
"Mr Linden's authorities only relate to restrictions on the number of witnesses to be called, and I have not been referred to any authority which supports the view that the Employment Judge is entitled to restrict the issues to be brought to the Tribunal. Indeed, the cases of Franco, Carter and Ma v Merck Sharp and Dohme Limited  EWCA Civ 1426 indicate to the contrary. In those cases attempts had been made to limit the number of issues to be tried by the Tribunal, but these were overturned on appeal. I appreciate that there are dicta that cases should be managed so as to exclude unnecessary or irrelevant matters. However, when Tribunals have attempted to do this they appear to have been over-ruled on appeal. I feel on balance, therefore, despite there being some hardship, but not excessive hardship to the Respondent, in having to produce evidence on these matters, the Claimant ought to be allowed to call evidence regarding the background matters referred to in paragraph 24. I cannot find that any of them are intrinsically irrelevant. All of them have a potential to shed some light upon the culture she suggests. Whilst I can see that some will have little relevance to the issues before the Tribunal, I do not feel able on the strength of the authorities put before me, to place any restriction on the number of background matters on which she seeks to rely. The Claimant must be entitled to produce the evidence which she feels supports her case, unless it is patently inappropriate or irrelevant. I cannot find that cannot be the case with matters referred to in paragraph 24."
(1) The basic rule is that if evidence is relevant it is admissible and if it is irrelevant it is inadmissible. In O'Brien (above) Lord Bingham said, at para. 3 (p. 540 F-G):"Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in R v Kilbourne  AC 729, 756:'Evidence is relevant if it is logically probative or disprobative of some matter which requires proof relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.'"
(2) Crucially for present purposes, relevance is not an absolute concept. Evidence may be, as it is sometimes put, "logically" or "theoretically" relevant but nevertheless too marginal, or otherwise unlikely to assist the Court, for its admission to be justified. As Hoffmann LJ said in Vernon v. Bosley  PIQR 337, at p. 340:"The degree of relevance needed for admissibility is not some fixed point on a scale, but will vary according to the nature of the evidence and in particular the inconvenience, expense, delay or oppression which would attend its reception. [A]lthough a Judge [in a civil case] has no discretion to exclude admissible evidence, his ruling on admissibility may involve a balancing of the degree of relevance of the evidence against other considerations which is in practice indistinguishable from the exercise of a discretion."
(3) There may be some divergence in the authorities as to whether the exclusion of evidence in such cases is to be described as being on the basis that the evidence in question is, properly understood, not relevant at all or rather that it is not sufficiently relevant. That question is reviewed in Phipson on Evidence (17th ed.) at para. 7-07. In my view the language of "sufficient relevance" gives a better idea of the nature of the judgment required; but the difference is one of terminology only. Likewise, it makes no real difference, as Hoffmann LJ observes in Vernon v. Bosley, whether the exercise of judgment required is described as the exercise of a discretion.
(4) There is, as I have already said, no distinction in principle between the powers in this regard of the civil courts before or after the introduction of the CPR - and those of the employment tribunal. If anything, it is arguable that employment tribunals, while guided by the same principles, should be rather more willing to exclude irrelevant, or marginally relevant, evidence. In Noorani (above) the Court of Appeal upheld the decision of a tribunal to refuse an application for witness orders on the grounds that the evidence which the witnesses would have given was insufficiently relevant to the claimant's case. Henry LJ said, at paras. 31-32:"30. .... The courts have long recognised that relevance is a matter of degree for the discretion of the trial judge. Thus in Cross & Tapper on Evidence (8th edition) at p. 61:'Relevancy is a matter of degree and it is as idle to enquire as it is impossible to say whether the evidence was rejected in the above two cases because it was altogether irrelevant, or merely because it was too remotely relevant. It may also, on occasion, require a balance to be struck between the probative force of the evidence and external pressure vitiating its use, such as the time likely to be taken in resolving collateral issues, the danger of manufacture, and sensitivity to private and public sentiment. ...31. A modern affirmation of that rule was made by Lord Templeman in his speech in Ashmore v Corporation of Lloyd's  2 All ER 486 at 493. Lord Templeman said how in an earlier case he:'... warned against proceedings in which all or some of the litigants indulge in over-elaboration causing difficulties to judges at all levels in the achievement of a just result. ... ' "
At paras. 35 and 36 he said:
"35. ... [P]roactive judicial case management in the law courts becomes more and more important now that it is generally recognised that, unless the judge takes on such a role, proceedings become overlong and over costly, and efforts must be made to prevent trials being disproportionate to the issue at stake, and thus doing justice neither to the parties, to the case at point or to other litigants.36 The position in relation to employment tribunals is a fortiori since they are intended to be relatively informal and inexpensive. Costs are seldom awarded to the successful party. Not surprisingly, there is no express fetter on the court's discretion to issue witness summonses, see para. 4(2)(a) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. It has never been the position that any evidence that might be relevant must be admitted; see Gorman v The Trustees of St Clare's Oxford (unreported) Employment Appeal Tribunal presided over by Slynn J on 23 October 1980. In that case there was a familiar employment tribunal situation. The employee sought witness summonses for his employer's senior management to attend when they would be most unlikely to be able to add anything to the witness in middle management who was to be called in relation to deal with the issues on which the senior management could help. And, as that case makes clear, if during the course of the case it seemed that the original decision not to issue a witness summons might be wrong, then the employment tribunal can always remedy the matter, adjourning if necessary."
(5) Consistently with the approach in Noorani, there have been a number of subsequent decisions of this Tribunal in which decisions of an employment tribunal that evidence was insufficiently relevant to be admissible have been upheld. I was referred in particular to Krelle v. Ransom (UKEAT/0568/05); Digby v. East Cambridgeshire District Council  IRLR 585; and McBride (above). In Krelle the tribunal had refused to allow the claimant to call his wife to give evidence on matters which it regarded as being of only peripheral relevance. Although in the event the appeal was decided on other grounds, Langstaff J discussed the point fully and made it clear that a challenge to this aspect of the tribunal's decision would have been unlikely to succeed. In McBride HH Judge Peter Clark upheld the decision of an employment judge at a case management discussion that the evidence of certain witnesses whom the claimant proposed to call at the hearing was inadmissible: at para. 19, applying Noorani, he characterised the question as being whether the witnesses' evidence would be "sufficiently relevant". In Digby Judge Clark upheld the decision of a tribunal in the course of a hearing to exclude evidence on an issue which it held to have no capacity to affect the outcome of the case.
(6) In both Krelle and Digby the claimant sought to rely on an old decision of this Tribunal, Rosedale Mouldings Ltd v. Sibley  ICR 816, in which Talbot J said, at p. 822B:"In our judgment there is no discretion in an industrial tribunal to refuse to admit evidence which is admissible and probative of one or more issues before it."
The correctness of that statement was challenged, albeit obiter, both by Sir Ralph Kilner Brown in Snowball v Gardner Merchant Ltd  IRLR 397 (see para. 11, p. 400) and by Langstaff J in Krelle (see paras. 2124); and in Digby it was disapproved as a matter of ratio. Judge Clark, adopting an observation of Langstaff J in Krelle, held, at para. 12 (p. 586):"A tribunal has a discretion, in accordance with the overriding objective, to exclude relevant evidence which is unnecessarily repetitive or with only marginal relevance in the interests of proper modern-day case management."
Before me, Mr. Craig sought, somewhat faintly, to contend that Digby was wrong and that the proposition quoted from Rosedale remained good law. I do not accept that submission. Talbot J's proposition, at least if taken to refer to "theoretical" relevance, is out of line with the whole trend of authority as I have set it out above. (Judge Clark in Digby referred specifically to the overriding objective set out in reg. 3 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, but in fact I believe that Rosedale was wrong (or at least too widely expressed) from the start: I like to think that the principles enunciated in reg. 3 fell to be, and generally were, observed by tribunals as much before as after the explicit adoption of the overriding objective.)
(7) 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, and certainly not to seek to do so interlocutorily or at the outset of a hearing. On the contrary, employment tribunals are constantly presented with irrelevant evidence; but most often it is better to make no fuss and simply disregard it or, if the evidence in question is liable to prejudice the orderly progress of the case, to deal with it by a ruling in the course of the hearing. In the generality of cases the cost and trouble involved in a pre-hearing ruling are unjustified. Further, where there is genuine room for argument about the admissibility of the evidence, a tribunal at a preliminary hearing may be less well placed to make the necessary assessment. As Mummery LJ observed in Beazer Homes Ltd v. Stroude  EWCA Civ 265, at para. 9:"In general, disputes about the inadmissibility of evidence in civil proceedings are best left to be resolved by the judge at the substantive hearing of the application or the trial of the action, rather than at a separate preliminary hearing. The Judge at a preliminary hearing on non-admissibility will usually be less well informed about the case. Preliminary hearings can also cause unnecessary costs and delays."
(8) Notwithstanding the general position as stated at (7) above, there will be cases where there are real advantages in terms of economy (in the broadest sense of that term) in ruling out irrelevant evidence before it is sought to be adduced and, more specifically, in advance of the hearing. (That this would sometimes be so was acknowledged by Mummery LJ in Beazer Homes: see para. 10.) The issue of relevance may be central to an interlocutory order which the tribunal is being asked to make, for example about witness orders (as in Noorani) or disclosure: in such cases a "wait and see" approach will generally not be practicable or fair. But it may also come up by way of a frank application to exclude evidence as a matter of case management for example where if the evidence in question is called it will seriously affect the estimate for the hearing or where its introduction might put the other party to substantial expense or inconvenience. That seems to have been the basis of the order which was upheld in McBride, where the claimant wished to call no fewer than seven witnesses all of whose proposed evidence the judge held to be irrelevant.
(9) Discrimination claims constitute a particular class of case in which it may - I emphasise "may" - be appropriate to decide questions of admissibility in advance of the hearing. It is notorious that there is a tendency in such cases for claimants to adduce evidence of very many incidents of alleged ill-treatment often extending over long periods of time and that this can lead to very long hearings which put an enormous burden both on the parties and on the tribunal and carry the risk of the essential issues being obscured in a morass of detail. In Chattopadhyay (above) Browne-Wilkinson P said, at pp. 139140:" we are very conscious of the great dangers of opening too widely the ambit of an inquiry under the Race Relations Act 1976. If this is done and not controlled, industrial tribunals will be faced with numerous issues on matters only indirectly relevant to the main issue. This in turn would lead to long and complicated hearings and great expense and inconvenience to the respondents. It is not in the best interests of those who are being racially discriminated against that the protection of their rights before tribunals should become a matter of great expense and complication. The end result of so doing would be to render the legal redress they have difficult and expensive to obtain. In the circumstances there is a very heavy burden on legal advisers, the Commission for Racial Equality and the Equal Opportunities Commission to ensure that matters of the kind that we have had to consider in this case are not introduced into a case, except where they are satisfied that there is a real probability that they will affect the outcome. This judgment should not be treated as a charter for wholesale allegation of subsequent events."
As appears, those observations were made in a case, where, unusually, the evidence whose admission was disputed concerned incidents subsequent to the acts complained of; but they are equally applicable where it concerns alleged prior incidents. Similar observations have been made from time to time in later cases: see, e.g., per Mummery LJ in Commissioner of Police of the Metropolis v. Hendricks  ICR 530, at paras. 53-54 (pp. 544-5).
(10) Whether a pre-hearing ruling on admissibility should be made in any particular case will depend on the circumstances of that case. For the reasons identified at (7), caution is necessary. As Mummery LJ pointed out in Beazer Homes (above), it will not always be possible to make a reliable judgment on the issue of relevance at an interlocutory stage. In the context of discrimination claims in particular, tribunals will need to bear in mind (though their relevance will depend on the particular case) the observations of Lord Steyn and Lord Hope in Anyanwu v. South Bank Student Union  ICR 391 to the effect that such cases are generally fact-sensitive (see paras. 24 and 37 (pp. 399 E-G and 404C)). Prior incidents which are not complained of in their own right (typically because they are out of time) may still be important as shedding light on whether the acts complained of occurred or constituted discrimination. This point was made most clearly by the Court of Appeal in Anya v. University of Oxford  ICR 847, notwithstanding that the Court had a clear appreciation, derived from the judgment of Mummery J in Qureshi v. Victoria University of Manchester  ICR 863n (which was cited at length in the judgment of Sedley LJ), of the problems to which reliance on a long history of alleged prior incidents could give rise. But each case is different, and caution should not be treated as an excuse for pusillanimity. If a Judge is satisfied on the facts of a particular case that the evidence in question will not be of material assistance in deciding the issues in that case and that its admission will (in Hoffmann LJ's words) cause "inconvenience, expense, delay or oppression", so that justice will be best served by its exclusion, he or she should be prepared to rule accordingly.
(a) In Carter (above) this Tribunal held that an employment tribunal had wrongly excluded evidence of incidents of racial discrimination preceding the acts complained of which were capable of shedding light on the question of whether those acts had occurred (and which had indeed been ruled on a previous occasion to be potentially admissible on that very basis). But that was simply a case of a misjudgment by the employment tribunal in the circumstances of the case in question: it is not authority for any wider proposition about the admissibility of "background facts".
(b) In Ma v. Merck, Sharp & Dohme Ltd  EWCA Civ 1426 the employment tribunal had not merely excluded evidence of background facts relied on by the claimant but had declined "in the interests of proportionality" to determine some of the actual acts complained of by her: there was an issue as to whether the acts in question were in time, but that issue had not at that stage been determined. That is plainly a very different case.
(c) In Franco v. Bowling (above) the claimant made complaints of discrimination extending over six years, all of which were apparently in time. The employment judge at a case management hearing made a direction limiting the complaints which the claimant was entitled to advance to those arising in the last two years. Again, therefore, as in Ma, actual causes of action had been excluded.