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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Health & Safety Executive v Jowett (PRACTICE AND PROCEDURE) [2022] EAT 151 (18 February 2022) URL: https://www.bailii.org/uk/cases/UKEAT/2022/151.html Cite as: [2022] EAT 151 |
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Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
HEALTH & SAFETY EXECUTIVE |
Appellant |
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- and - |
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MR M ![]() | Respondent |
____________________
Matthew Jowett
the Respondent in person
Hearing date: 18 February 2022
____________________
Crown Copyright ©
SUMMARY
PRACTICE AND PROCEDURE
The Health and Safety Executive, the respondent below, appealed a case management order determining that documents it wished to rely upon for the purposes of resisting the claimant's five years loss of future earnings claim were inadmissible and could not be referred to at the remedy hearing. The claim related to the withdrawal of a job offer of Trainee Health and Safety Inspector in February 2019. The claimant had a previous period of employment with the respondent from April 2008 to January 2011 in a very similar position, from which he had resigned. The respondent wanted to rely on documents from the earlier period of employment to support its contention that there was at least a substantial prospect that the claimant would not have remained in the role for five years from 2019 had his employment commenced.
It was held that the Employment Judge ("EJ") had misdirected herself in failing to appreciate that it was incumbent on the tribunal to assess the chance of the claimant remaining in the role, even if it could not be shown on a balance of probabilities that his employment would have lasted less than five years: Abbey National plc and another v Chagger [2010] ICR 397. Furthermore, the EJ had not directed herself in accordance with the guidance at paras 13(7) and (10) in HSBC Asia Holdings BV v Gillespie UKEAT/0417/10/DA, that it will generally be better to leave such assessments for the tribunal of fact, rather than excluding the documentation at the interlocutory stage; and she had failed to take into account that the result of her decision was to deprive the respondent of the ability to effectively present its case on loss of earnings at the remedy hearing. Additionally, in all the circumstances the EJ's decision was perverse.
Accordingly, the appeal was allowed, and an order substituted that the documents were admissible and could be relied upon by both parties at the remedy hearing.
THE HONOURABLE MRS JUSTICE HEATHER WILLIAMS:
Introduction
Facts and circumstances and the EJ's ruling
"Whether documents relating to the claimant's previous employment with the respondent are relevant and can be included in the bundle of documents for use at the final hearing? The documents in question are approximately 45 different documents which appear to have been created during the period from April 2008 to July 2012."
At that stage it was envisaged that the final hearing would include consideration of remedy, if the claim was successful. Subsequently, and in light of this appeal, the ET sensibly listed a hearing to address merits only.
"(51) My primary consideration in deciding whether the Documents are admissible or not is their relevance to the issues which the Tribunal has to determine. The fact that they may have been retained illegally by the respondent is a factor , but not an important factor in my decision making on this issue.
(52) I have reminded myself of the guidance in O'Brien v Chief Constable of South Wales Police that 'relevant' means that the evidence must be "logically probative or disprobative of some matter which requires proof"; and of the guidance HSBC Asia Holdings BV and anor v Gillespie that evidence may be theoretically relevant but nonetheless too marginal or otherwise unlikely to assist the court, for its admission to be justified.
(53) I am not persuaded that the documents which relate to the claimant's previous employment with the respondent, which terminated in 2011, could be probative or disprobative of the question of how long the claimant may have remained in employment with the respondent had he re-joined them 2019. Some of the documents are more than ten years' old, and I struggle to see how the Tribunal that hears this claim will make any relevant findings based upon such old documents.
(54) It seems to me that the Documents may be theoretically relevant, but that their relevance is marginal at best.
(55) I therefore find that the Documents are inadmissible and should not be referred to in the evidence in these proceedings."
"…We are of the view that Mills and Reeve has complied with its data protection obligations.
This is because we consider Mills and Reeve to be entitled to decline your cease processing request where it is processing information, on behalf of its client, for the purposes of representing that client in legal proceedings.
We consider HSE, and its representative, entitled to submit the disputed information to the employment tribunal on the basis that it, the HSE, considers the past employment information relevant to the ongoing legal proceedings.
Data protection provides an exemption allowing personal data to be processed for the purposes of legal proceedings, including prospective legal proceedings, as well as for the purpose of obtaining legal advice, and as well as for the purpose of establishing, exercising or defending legal rights.
Under this provision HSE is entitled to provide information it holds to its legal representative for the purposes of their advice and representation.
If the client and its advisers consider the held information (about the past employment) to be relevant to the current legal proceedings then they are entitled to submit that information to the tribunal for the purpose of those proceedings.
Should you believe that the historical employment information is irrelevant to the ongoing proceedings then that is a matter for the tribunal to rule upon, that you should raise with the tribunal itself…
Data protection law does not set any specific timescale after which past employment records must be deleted. Employers are entitled to continue to retain information for longer than just the statute of limitations if that organisation finds or considers it necessary for it to hold information for a longer period. In the case of statutory regulators, such as the HSE, the statutory role of the organisation can mean that it is necessary for the organisation's employment records to be retained for longer to avoid prejudice to the organisation's past and ongoing statutory functions.
Whilst you retain the right to submit a GDPR deletion request to the HSE, the ICO consider it likely to be the case that the HSE have breached data protection by still retaining your past employment information (from prior to 2011) at the time of your complaint to the ICO."
Fresh evidence application
The legal framework
"The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts."
"I heard full submissions about the extent of the power of an employment tribunal to exclude evidence on the grounds that it is irrelevant or insufficiently relevant. Although the position in the courts is now the subject of express provision…, it is common ground that the approach in employment tribunals is in principle no different. In my judgment the law is in fact reasonably clear, though superficial confusion may be caused by some inconsistencies in terminology. I will attempt to summarise the position as follows.
(1) The basic rule is that if evidence is relevant it is admissible and if it is irrelevant it is inadmissible. In O'Brien v Chief Constable of South Wales Police… para 3, Lord Bingham of Cornhill said:
"Any evidence, to be admissible must be relevant…Relevance must, and can only, be judged by reference to the issue which the court…is called upon to decided. As Lord Simon Glaisdale observed in R v Kilbourne [1973] AC 729, 756: 'Evidence is relevant if it is logically probative or disprobative of some matter which requires proof…relevant (ie 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 the admission to be justified…
(3) …..
(4) There is, as I have already said, no distinction in principle between the powers in this regard of the civil courts…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…
(5) …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…
(6) …..
(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 that 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 [2005] EWCA Civ 265 at [10]:
"In general disputes about the admissibility of evidence in civil proceedings are best left to be resolved by the judge at the substantive hearing of the application or at the trial of the action, rather than at a separate preliminary hearing. The judge at a preliminary hearing on 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 advantage 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…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.
(9) …..
(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 reason identified at (7), caution is necessary…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…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."
"In determining the loss sustained, it is plainly material for a tribunal to consider what would have happened had no dismissal occurred. Sometimes that might be a matter of fact, such as where the workplace closed shortly after the dismissal making everyone redundant: see e.g. James Cook and Co.(Wivenhoe) Ltd v Tipper [1990] ICR 716. In most cases, however, it involves a prediction by the Tribunal as to what would be likely to have occurred had employment continued."
"The following principles emerge from these cases: (1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal. (2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had a fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself… (3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made. (4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to that evidence…(6)…It follows that even if a tribunal considers that some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers that it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely. (7) Having considered the evidence the tribunal may determine…(b) that there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly; (c) that employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself…"
"…It is necessary to ask what would have occurred had there been no unlawful discrimination. If there were a chance that dismissal would have occurred in any event, even had there been no discrimination, then in the normal way that must be factored into the calculation of loss."
"…This exercise requires the court to determine what, in fact, were the chances that dismissal would have occurred had there been no unlawful discrimination. It focuses on what the employer would have done not what he could lawfully have done. There is no injustice in this exercise."
Submissions
The Respondent
• The role of HSE inspector has not fundamentally changed between the time of the two appointments. The claimant resigned his first employment with the respondent after an extensive period of performance management. The role is one that includes fixed stages of performance measurement. It is therefore reasonable to consider that the claimant's past performance in the role will provide an indication of his likely success second time around.
• The claimant did not commence his second period of employment and accordingly, the ET will have a limited amount of material to go on in terms of assessing what would have happened absent discrimination, if the documents relating to his previous period of employment are not to be taken into account.
• The claimant seeks to distinguish between the two periods, arguing that there were particular reasons why he decided to resign his position during the earlier period of employment (a transient health condition and / or the way he was treated by his then line manager), which would not apply to the later period. However, the respondent does not accept this proposition and the rival contentions cannot be properly or fairly evaluated without reference to the contemporaneous documentation. If the respondent is unable to rely upon the documents, its ability to cross examine the claimant on this issue will be substantially impaired.
• The respondent has not been able to locate a witness who could give direct evidence to the claimant's performance in the role during the earlier period of employment, accordingly, the contemporaneous documentation is of particular significance.
• As identified at paragraph 54 of Software 2000, the onus lies on the respondent to adduce supporting evidence when it argues that employment would have terminated in any event. Accordingly, its opportunity to do so should not be compromised; and
• It was not suggested that admission of the documentation would prejudice the orderly progression of proceedings.
• As was indicated to the EJ below, the documents can be redacted to remove any personal information that is not directly relevant to the issue before the ET.
• The General Data Protection Regulation ("GDPR") came into effect on 25 May 2018. Prior to that there was no "right to erase". Accordingly, the period during which the respondent should arguably have taken steps to delete data was around nine months from this point until 28 February 2019. From this later date the claimant had indicated an intention to commence litigation against the respondent and therefore it was entitled to retain the material for these purposes.
• Any breach of data protection obligations bears no causal relationship to the discrimination now established in this case.
• In any event, if the respondent was in breach of data protection obligations, this in itself does not render the evidence inadmissible. Applying Fleming v East of England Ambulance Services NHS Trust UKEAT/0054/17/BA ("Fleming") by analogy, there is a balance to be struck between the public interest in litigants being able to avail themselves of relevant evidence, on the one hand, and the public interest in holding organisations to their obligations under the GDPR on the other.
The Claimant
Discussions and conclusions
Ground One: error of approach
"… the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence that might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence."
Ground Two
(i) The task that the ET would have to undertake at the remedy stage in respect of the five years loss of future earnings claim, which I have already described;
(ii) That the ET was duty bound to try and make an assessment of the prospects of the claimant remaining in post for the full five years that he claimed, given the respondent disputed this proposition and even if a degree of speculation was involved;
(iii) In undertaking this task, the fact-finding tribunal would be best assisted by being able to consider the entirety of the evidence that bore on this issue, rather than by being restricted to seeing only a portion of that evidence or material;
(iv) Although it was a number of years ago, the claimant had previously worked for the respondent in a very similar position, leaving after three years. In the interim the claimant had been employed in a very different kind of work;
(v) The reasons why he left that position were in dispute between the parties and it would be necessary for the ET to resolve this issue;
(vi) The Software 2000 line of authority recognises that the onus lies on the respondent to adduce supporting evidence if it is alleged that the notional employment would have come to an end at a stage earlier than the period for which the loss of earnings is claimed;
(vii) The claimant intended to give evidence at the remedy hearing to the effect that the two periods were quite distinct and that the reasons why he left the respondent's employment in 2011 did not bear on his circumstances in 2019 onwards. The respondent wished to cross examine him on this aspect, but, on the EJ's ruling it would be unable to rely on contemporaneous documentation and would be deprived of the opportunity to effectively advance its case on this issue;
(viii) As the claimant had not commenced the second period of employment there was no other material that directly bore on the question of how he would have performed in the role;
(ix) There was very little, if anything, to be balanced in the other direction as capable of outweighing this relevance;
(x) Admitting the documents would not just prejudice the orderly progression of proceedings, as I have already addressed.
"17. I was referred to three EAT authorities on this topic: Chairman and Governors of Amwell View School v Dogherty [2007] ICR 135, Williamson v Chief Constable of Greater Manchester Police (unreported, UKEAT/0346/09/DM, 9 March 2010), and Punjab National Bank v Gosain (unreported, UKEAT/0003/14/SM, 7 January 2014). It seems to me the legal position is as follows in relation to evidence of the private deliberations of an internal panel:
(1) The fact that such evidence is the product of a covert recording is not in itself a ground for not admitting it.
(2) There is however an important public interest in preserving the privacy of such deliberations; otherwise, full and open discussion may be inhibited and the integrity of the outcome may be undermined.
(3) When a party seeks to rely on such evidence a balance must be struck between that public interest and the public interest in litigants being able to avail themselves of any relevant evidence.
(4) The balance must be struck having regard to the particular circumstances of the case; that may involve a consideration of the nature and quality of the deliberations on the one hand and the value and weight of the evidence on the other.
….."
Disposal