The claimant was bringing claims of sex discrimination and sexual harassment following her dismissal from HSBC. As background to her case, and to prove that there was a culture within the organisation in which discrimination was wide-place and/or in which it was tolerated or not properly tackled, she sought to rely on incidents of harassment going back 15 years. The respondent objected, saying that the matters pleaded were inadmissible because they were '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 was disproportionate and contrary to the overriding objective.' The ET rejected HSBC's argument, saying that the authorities quoted by counsel for the respondent only related to restrictions on the number of witnesses to be called, and they had not been referred to any authority which supported the view that the Employment Judge was entitled to restrict the issues to be brought to the Tribunal. The Judge also considered the rule that if evidence was irrelevant it was inadmissible but said that he could not find that any of the matters the claimant wanted to use were intrinsically irrelevant. He thus allowed the evidence to be used.

The EAT upheld the respondent's appeal, saying that the Employment Judge had misdirected himself. The authorities to which he had referred made it clear that he had the power to make a judgment as to whether the evidence of those matters was sufficiently relevant to the pleaded issues as to be permissible, and he declined to do so. He had also misdirected himself by dismissing the authorities on the basis that they related only to restrictions on the number of witnesses to be called, when in fact the underlying principles were concerned with the relevance of the evidence itself.
_____________________

Appeal No. UKEAT/0417/10/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 October 2010

Judgment handed down on 19 November 2010

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

(sitting alone)

(1) HSBC ASIA HOLDINGS B.V.

(2) HSBC HOLDINGS PLC (APPELLANTS)

MS A GILLESPIE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellants MR THOMAS LINDEN  (one of Her Majesty's Counsel)
Instructed by:
Allen & Overy
One Bishops Square
London
E1 6AB

For the Respondent MR DAVID CRAIG (of Counsel)
Instructed by:
Farrer & Co LLP
66 Lincoln's Inn Fields
London
WC2A 3LH

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

1. The Claimant was employed by the First Appellant, a company in the HSBC Group, as an International Manager ("IM"). IMs are a relatively small cadre of skilled and versatile managers who are liable to be posted to do different jobs in different parts of the HSBC Group anywhere in the world, typically for fairly short periods. In the first ten years after her employment with HSBC in 1991 the Claimant worked in various parts of the Far East. From 2001 to 2002 she was in Luxembourg and from 2002 to 2003 in Geneva. Since 2003 she has been based in London. From 2003 to 2004 she was a Branch Manager at Chiswick High Road, and from 2004 to 2006 she worked as a Project Manager at the HSBC office in St James's. In January 2006 she started work in the Group Risk Department at Canary Wharf. During her time in Group Risk various problems arose, and she was eventually dismissed with effect from 18th December 2008.

1. On 17th March 2009 the Claimant commenced proceedings against both the First and the Second Appellant (being the First Appellant's parent company): since it is not necessary for the purposes of this appeal to distinguish between the Appellants, or indeed any other HSBC entity that may be involved, I will refer to them collectively as "HSBC". Her claims are of discrimination (including victimisation) and harassment contrary to the Sex Discrimination Act 1975, unlawful detriment contrary to the "whistleblower" provisions of the Employment Rights Act 1996 and unfair dismissal (by reference to both section 98 and section 103A of the 1996 Act). The Details of Claim are very clearly and carefully pleaded. I need not analyse them in any detail at this stage. For present purposes I need only note three points:

(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.

1. HSBC has pleaded very full Amended Grounds of Resistance. Among the points taken is an objection to para. 24 of the Details of Claim on the basis that the matters pleaded are inadmissible because (see para. 58):

"… 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. There was a case management discussion on 11th February 2010 before Employment Judge Pritchard-Witts. For the purpose of the hearing the Claimant's counsel, Mr. David Craig, produced a draft list of issues. Judge Pritchard-Witts ordered a pre-hearing review to determine three issues as follows:

"1. Whether on the grounds of [admissibility] those matters raised at paragraph 24 of the Details of Claim should be allowed to proceed.

1. [An issue as to whether certain of the pleaded complaints were out of time and, if so, whether time should be extended.]

1. 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. The PHR duly took place at the East London Hearing Centre before Employment Judge Haynes on 19th and 20th July 2010. The Claimant was represented by Mr. Craig and HSBC by Mr. Thomas Linden QC. HSBC put in a witness statement from Mr. Stuart Tait, the Head of HR for IMs, addressing inter alia the issue of the admissibility of the matters pleaded at para. 24 of the Details of Claim. He was cross-examined by Mr. Craig. By a Judgment with Reasons sent to the parties on 10th August Judge Haynes:

(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.

1. HSBC appealed initially only against element (1) in the Judge's decision, i.e. that relating to para. 24 of the Details of Claim. On the sift I directed an expedited full hearing. Subsequently HH Judge McMullen QC allowed HSBC leave to amend the Notice of Appeal in order to challenge also element (3). On the appeal the parties were again represented by Mr. Linden and Mr. Craig. Both their written and their oral submissions were of high quality, and I am correspondingly grateful.

1. Since the decision under appeal there has been a further CMD, and another was fixed for 5th November (though I understand that it has since been postponed). In order that the parties should know where they stood in good time before that date, I notified them shortly after the hearing of the substance of my decision, though the formal order is only being made today.

1. I consider in turn the two aspects of the Judge's order which are under appeal.

1. I need not set out para. 24 of the Details of Claim in full. It is headed "Background in relation to sexual harassment complaints". It starts:

"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.

1. Mr. Craig indicated that, notwithstanding the wording of the heading, the matters pleaded in para. 24 were relied on by way of background not only to the sexual harassment complaint but also to the Claimant's other complaints. Mr. Linden did not seriously object to that clarification. Nevertheless, it is plain that insofar as they are relevant at all the allegations will of their nature be primarily relevant to the complaint of sexual harassment.

1. HSBC's objection to the admissibility of the matters pleaded in para. 24 is sufficiently summarised by the Judge at para. 17 of the Reasons as follows:

"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 [1982] ICR 132; Noorani v. Merseyside Tech Ltd [1999] IRLR 184; Carter v. Stakis Plc (EAT/1016/99); O'Brien v. Chief Constable of South Wales Police [2005] 2 AC 539; Beazer Homes Ltd v. Stroude The Times 28.4.05 ([2005] EWCA Civ 265); McBride v. Standards Board for England (UKEAT/0092/09); and Franco v. Bowling & Co. (UKEAT/0280/09).

1. The Judge's reasons for rejecting HSBC's application are to be found in para. 18 of the Reasons, which reads as follows:

"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 [2008] 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. 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 (see CPR 32.1(2)), 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 (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 [1973] 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 [1994] 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 [1992] 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 [2007] 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 [1980] 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 [1987] IRLR 397 (see para. 11, p. 400) and by Langstaff J in Krelle (see paras. 21–24); 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 [2005] 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. 139–140:

"… 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 [2003] 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 [2001] 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 [2001] ICR 847, notwithstanding that the Court had a clear appreciation, derived from the judgment of Mummery J in Qureshi v. Victoria University of Manchester [2001] 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.

1. The Judge in the present case seems to have thought that although this Tribunal and the Court of Appeal may have made pious noises about the desirability of robust case-management generally, and the prior exclusion of irrelevant evidence in particular, when tribunals attempt to apply that guidance in particular cases they tend to be slapped down: see his observations in the middle of para. 18 of the Reasons. I do not believe that that is fair. The cases referred to at para. 13 (4) and (5) above are all examples where decisions to exclude evidence have been upheld. If, as appears to be the case, he had in mind the three cases to which he had referred earlier in para. 18, none of them supports his perception. Briefly:

(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 [2008] 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.

1. Against that background it is in my view clear that the Judge misdirected himself in para. 18 of the Reasons. He was right to say that the cases of Ma and Franco established that a tribunal cannot prevent a claimant from adducing evidence of the actual acts complained of. But that is not the question in the instant case. The evidence which he was being asked to exclude did not directly relate to any of the pleaded acts: on the contrary, it was avowedly "background". In those circumstances the authorities which I have reviewed in para. 13 make it perfectly clear that he had the power to make a judgment as to whether the evidence of those matters was sufficiently relevant to the pleaded issues to be admissible. He declined to exercise that power: see in particular his statement that he felt unable "on the strength of the authorities … to place any restriction on the number of background matters on which [the claimant] seeks to rely". I also think that, in the context of that self-direction, his statement that none of the matters in question was "intrinsically" or "patently" irrelevant connotes the application of a test of what I have referred to above as "logical" or "theoretical" relevance rather than the approach supported by the authorities. In so far as the Judge purported to dismiss the authorities relied on by Mr. Linden on the basis that they "only relate to restrictions on the number of witnesses to be called", that too, with respect, is a misdirection. Although in each of the cases in question the issue of admissibility did indeed arise in the context of whether a particular witness or witnesses should be called, the underlying principles are concerned with the relevance of the evidence itself rather than with the witnesses who may be giving it.

1. Mr. Craig understandably emphasised the passage in the middle of para. 18 of the Reasons where the Judge assesses the hardship to HSBC of having to meet the allegations in question and points also to his use of the phrase "on balance". He submitted that that showed that the Judge was in fact carrying out a quasi-discretionary exercise of the kind required by the authorities. But at best that shows an inconsistency in the Judge's approach. The fact remains that he set himself the wrong test and wrongly limited the nature of the exercise which he should have carried out.

1. The question then arises of what course I should take in the light of that misdirection. Mr. Linden submitted that I should myself decide the question of the admissibility of the para. 24 allegations, using my powers under section 35 of the Employment Tribunals Act 1996. Mr. Craig submitted that I should remit the question to the Tribunal, for determination either at the case management discussion on 5th November or (bearing in mind the observations of Mummery LJ in Beazer Homes) at an appropriate stage in the course of the hearing itself.

1. In my judgment I can and should decide this question for myself. The para. 24 allegations are self-contained, and all the material needed to assess their relevance is available now. This is not the kind of case where there is reason to suppose that the details of the case as eventually advanced will usefully inform an assessment of the relevance issue. The likelihood is that if the para. 24 allegations remain in play HSBC will feel obliged to try to find out what evidence is available to rebut them. It could in theory take a tactical decision to take no steps to investigate them, trusting that they will be excluded at the hearing itself or that if admitted they will be undermined in cross-examination or ignored by the Tribunal in reaching its eventual decision. But that would be a very robust course, and I am not entitled to assume it will be followed. In any event there is the question of disclosure. Mr. Craig was not prepared to say that the Claimant would expect no disclosure on these allegations, though he did accept that the necessary searches in relation to background matters could properly be less extensive. The enquiries necessary to investigate the para. 24 allegations, and in order to give disclosure, would necessarily involve significant costs. Mr. Craig submitted that the Judge had been given no material that would have enabled him, or would enable me, to assess those costs, and he relied on answers given by Mr. Tait in cross-examination to show that HSBC had not yet embarked on the task of trying to contact the employees, or ex-employees, involved and that there were means by which they could quite easily do so. But it is not necessary, and would be quite disproportionate, to require detailed costs estimates for the exercise involved. It is plain as a matter of common sense that a substantial amount of work will be required from both HSBC and its solicitors to contact the individuals named in para. 24 and the Further Information (not to mention to identify those unnamed and who might have evidence to give), to take their proofs and to assemble any relevant documents. Those costs would of course be likely to be the greater given that the events in question go back fifteen years and occurred in many different countries. Arrangements would need to be made for any relevant witnesses to attend the Tribunal, which would involve cost, stress and inconvenience (particularly if any had to come from abroad). In my judgment there is a strong case for deciding at this stage whether these steps do indeed need to be taken.

1. I turn therefore to the question of relevance. In my judgment the para. 24 allegations are not sufficiently relevant to be admissible. It is not simply that the matters alleged occurred many years before the acts complained of. More to the point, they involve none, or virtually none, of the same individuals. None of the persons referred to in para. 24 is named in para. 20 of the Details of Claim as having committed an act of harassment. Mr. Craig said that there was nevertheless a degree of overlap, in that it appears from the Further Information that three employees who had been party to calling the Claimant "Barbie" in Hong Kong in the mid–1990s worked in Group Risk in London (though, as I say, none of them is named in para. 20) and that Mr. Wilson, her line manager in Hong Kong, was "involved with her performance management and posting decisions" in Group Risk; but he accepted that that overlap was "relatively minor". The case is thus quite unlike, say, Anya where the "background information" relied on related to the alleged discriminator himself and plainly had the potential to shed light on his motivation. The Tribunal's decision on the allegations of harassment in the Group Risk department in London pleaded in para. 20 of the Details of Claim will necessarily be based on the evidence called about those allegations; and allegations – whether or not they are disputed, but all the more so if they are – about how the Claimant was treated by different individuals in different offices in the Far East will be marginally relevant, if at all. The same is true, but a fortiori, of the victimisation and other claims pleaded elsewhere in the Details of Claim.

1. Mr. Craig's essential case is that the relevance of the background allegations is not that they cast light directly on the conduct or motivation of individuals against whom allegations are made in para. 20 but that – as pleaded in para. 24 – they "reflect a culture within the organisation in which discrimination is wide-place [sic: this is a neologism, but not a bad one, conflating, I presume, "widespread" and "commonplace"]". It is unnecessary when one reads the word "culture" in this context to reach for one's revolver, but it is nevertheless an imprecise term, and it needs to be appreciated how an allegation of a "discriminatory culture" fits into the proper legal approach. In a case of (direct) discrimination the ultimate question will always be whether the claimant was treated in the way complained of by one or more individuals on the proscribed ground (or – as we will soon be saying – because of the protected characteristic). Where there is a dispute about whether the particular acts complained of occurred, or whether they were done with a discriminatory motivation, proving that (say) sexist behaviour or talk was common in the workplace, which is essentially what a discriminatory "culture" means, may well assist in the determination of that dispute (though it should not be allowed to distract the tribunal's ultimate focus from the particular acts complained of). In harassment cases it may also be relevant in another way, in as much as "a discriminatory culture" may be an acceptable synonym (though synonyms are best avoided so far as possible) for the statutory language of a "hostile, degrading, humiliating or offensive environment". In the present case evidence showing a discriminatory culture in the Group Risk department is plainly relevant for either or both of those reasons. But the para. 24 allegations do not relate to the Group Risk department. Mr. Linden questioned what "organisation" was being referred to in Mr. Craig's pleading: it was plainly not the entirety of HSBC worldwide. Mr. Craig's response was that the organisation in question was "the IM community" and the other senior managers with whom the Claimant naturally dealt. IMs, moving as they did throughout the HSBC group, were "effective culture–carriers", and showing that they were infected by a sexist culture was capable of strengthening the Claimant's case that such a culture existed in the Group Risk department. I find this unconvincing. Even assuming that the para. 24 allegations tend to show a sexist culture at the dates in question among IMs or some other senior managers and that the position then was a good guide to their culture ten or fifteen years later, Group Risk was not an "IM entity". Very few of those named in para. 20 are IMs: in particular, Mr. Pendrill, Mr. Insua and Mr. Raymen are not. Likewise, the senior managers referred to in para. 24 had no involvement with the pleaded events in Group Risk. I repeat that in reality the basis for the Tribunal's decision on the allegations in para. 20 (and, to the extent that this is relied on, on the other pleaded allegations) will, inevitably, be the facts pleaded in that paragraph and the evidence supporting them. The Tribunal will have to decide whether the pleaded events occurred and/or whether they constituted harassment. They are numerous and circumstantial. It is frankly fanciful to suppose that it will be assisted in reaching its decision about those events by considering evidence of other alleged acts involving people in other departments many years previously. The same applies – indeed a fortiori – if, which may be unlikely, the Tribunal has to decide questions of discriminatory motivation. Even if there was some theoretical relevance, as the Judge thought, that relevance is, in his own word, marginal; and I am quite sure that the time and expenditure of costs consequent on the admission of the "background" pleaded in para. 24 would be unjustified by any assistance which it could give the Tribunal.

1. I therefore allow the appeal on this aspect and direct that evidence of the para. 24 allegations will be inadmissible at the hearing.

"SAMPLES"

1. Mr. Linden announced in the course of the hearing that he had agreed with Mr. Craig that he would not be pursuing his challenge to the Judge's refusal to direct that the Claimant proceed on sample claims, on the understanding that the language of the introductory words of para. 20 did not preclude the Tribunal from deciding whether the Claimant was entitled to introduce further claims not so far pleaded. (That condition may not seem to have much to do with the question of sample claims; but I dare say there was a forensic overlap.)

1. In those circumstances I need not, strictly, say anything more about this aspect. But it may assist in other cases if I make a few general observations, since I had the advantage not only of Mr. Linden's and Mr. Craig's skeleton arguments but also of some discussion with them before the point was finally conceded.

1. We are here concerned not with the power of the Tribunal to exclude evidence but with whether it has any power to prevent the prosecution of a claim in respect of an actual pleaded cause of action. There are sometimes cases in which a claimant complains of a very large number of discrete incidents but it appears that the gist of his or her claim can for all practical purposes be fairly tried by reference to a sample only, with a consequent reduction of the burden on the resources both of the parties and of the tribunal. In such a case I can see no objection whatever to an employment judge at a case management discussion, or a tribunal at the start of a hearing, seeking to persuade the parties to agree that only certain of the claims will be heard and that the outcome of the balance will follow the outcome on those claims. If both parties are represented, securing the necessary agreement may be straightforward (though there may of course be difficult issues as to particular questions, such as the number and selection of the samples and the impact of any selection on the question of remedy). If, however, one party (typically the claimant) is unrepresented, the judge or tribunal will need to proceed with great circumspection and to ensure that the unrepresented party understands what is being proposed.

1. The question then arises of what the tribunal can do if agreement to proceed by sample cases cannot be obtained. Leaving aside cases where for particular reasons pursuit of the claims in question may constitute an abuse, it seems plainly right as a matter of principle, and is confirmed by Ma and Franco v. Bowling, that a tribunal has no power to prevent a claimant prosecuting a properly arguable claim, even if it forms one of very many similar claims and determination of a sample might be thought for all practical purposes to suffice. However, it does not necessarily follow that all of a claimant's claims need be heard in a single hearing. There is no reason in principle why as a matter of case management – and, more specifically, exercising its power under rule 10 (2) (i) of the Employment Tribunal Rules – a tribunal cannot hive off claims which it regards as secondary or repetitive or otherwise unnecessary, to be dealt with at a subsequent hearing, in the more or less confident expectation that in practice once the first tranche of claims has been heard the second is unlikely to proceed.

1. To say that such a course is possible in principle is not to say that it should always or generally be followed. Although the hope would be that the second hearing would never happen, that could not be assured, and if it did happen the cost and delay would almost certainly be greater than if there had been a single hearing, however long. There would also potentially be problems of obtaining the same tribunal for both hearings: if a different tribunal sat on the second tranche, not only would more evidence have to be re-heard but there would be the risk of inconsistent findings. For those and similar reasons both Mr Linden and Mr. Craig expressed the view that splitting hearings might be generally unwelcome to both claimants and respondents. It will also often be the case that the claims will not lend themselves to being split. There may be too much factual overlap, and claimants may be able legitimately to argue that the cumulative effect of a large number of claims has an evidential value which would be unfairly weakened if they were heard separately. Even leaving that point aside, choosing which claims should proceed in the first tranche may be difficult. None of those points means that it will always be wrong for a tribunal to order, without the agreement of both parties, that in a case raising a large number of discrete claims a sample of those claims should be heard as a first tranche. The power to make such a direction should be part of the tribunal's case management armoury. But it does mean that it is a course which should only be followed after most careful consideration and where the advantages of doing so are clear. Heroic case management interventions sometimes cause more trouble than they save.

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UKEAT/0417/10/DA

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