Kalu v Brighton & Sussex University Hospitals NHS Trust & Ors  EWCA Civ 897
Appeal against an EAT decision ruling that the ET had erred in law by refusing to admit certain paragraphs of the claimant's witness statement. Appeal allowed and the ET decision was restored.
The claimant brought claims of race discrimination to the ET after the respondent Trust put in place certain procedural arrangements in case of a swine flu epidemic, which the claimant claimed effectively racially segregated consultants from 2 separate hospitals. One hospital employed just white consultants whereas the hospital in which the claimant worked employed black consultants and the present claim followed other claims in which the claimant believed that this so called segregation reflected a culture of racial discrimination at the Trust. The parties exchanged witness statements before the ET hearing but the ET ordered that certain paragraphs of the claimant's witness statement (and some from his colleague's witness statement although that was not relevant in this appeal) should be excluded. The claimant appealed to the EAT and by a majority, the EAT ruled that some of the excluded evidence should be allowed. The respondent Trust appealed.
The Court of Appeal allowed the appeal and restored the decision of the ET. The majority at the EAT said that the Tribunal did not "assess the relevance of the evidence in question before reaching a conclusion". The Court of Appeal did not accept that as it seemed clear from the ET judgment that it did do just that.
Case No: A2 2014 1875 & 1876
Neutral Citation Number:  EWCA Civ 897
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 21 April 2015
LORD JUSTICE MOORE-BICK
LORD JUSTICE UNDERHILL
LORD JUSTICE CHRISTOPHER CLARKE
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BRIGHTON AND SUSSEX UNIVERSITY HOSPITALS NHS TRUST & ORS (Respondent)
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(DAR Transcript of
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Daniel Matovu (instructed by Capstick Solicitors LLP) appeared on behalf of the Applicant
Dr Kalu (litigant in person)
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LORD JUSTICE UNDERHILL:
- The First Appellant ("the Trust"), is responsible for two hospitals in Sussex, the Royal Sussex County Hospital ("the RSCH") in Brighton and the Princess Royal Hospital ("the PRH") in Haywards Heath. The Respondent, Mr Kalu, is employed by the Trust as a consultant gynaecologist at the PRH. The remaining Appellants are consultants in obstetrics and gynaecology employed by the Trust at the RSCH. I will refer to them as "the RSCH consultants".
- Mr Kalu is black, as were the two other consultants in obstetrics and gynaecology at the PRH at the material time. One of them was a Mr Ogueh. The consultants at the RSCH were all, at the material time, white. Mr Kalu believes that that segregation, as he refers to it, reflects a culture of racial discrimination at the Trust. On three occasions prior to the present proceedings he has brought claims of racial discrimination against it, all three of which have been compromised. Mr Ogueh has also brought such a claim.
- In February 2010 Mr Kalu commenced the present proceedings in the Employment Tribunal against the Trust and the RSCH consultants. The claim arose out of a policy proposed (though never implemented) in the second part of 2009 about the contingency arrangements for the delivery of obstetrics and gynaecology services which would apply in the event of the then threatened swine flu pandemic. Under those arrangements RSCH would, in the event of a large of number staff being incapacitated, be designated as the priority hospital; and that could, in some very particular circumstances, have had the consequence that consultants at the PRH might have been required to undertake the role of a registrar. The consultants at the PRH objected to the proposed arrangements and they were not in the event adopted. The issue in any event turned out to be academic because the swine flu pandemic never eventuated, but Mr Kalu believed that the proposal of those arrangements, which had the potential to favour consultants at the RSCH over those at the PRH, reflected the different racial composition of the groups of consultants at the two hospitals and/or the fact that he and Mr Ogueh had brought previous claims of racial discrimination against the Trust.
- Mr Kalu's claim was heard by an Employment Tribunal sitting at Brighton, chaired by Employment Judge Warren, over five days from 14 to 18 February 2011. Although Mr Kalu was not at any stage in the proceedings represented by solicitors, he was represented, on a direct access basis, at the hearing and at a previous case management discussion by Mr Ayoade Elesinnla of counsel. The Trust was represented by Ms Tina Elliott, a partner in Capsticks. The RSCH consultants were represented Ms Helen Bell of counsel, instructed by Irwin Mitchell.
- By a judgment and reasons sent to the parties on 13 June 2011 the Employment Tribunal dismissed Mr Kalu's claim. I need not set out its reasoning in any detail. In short, it found that the arrangements, or proposed arrangements, were founded purely on legitimate operational considerations and had nothing to do with the ethnicity of Mr Kalu or his colleagues or his previous claims. I should, however, note two particular points about the reasoning which is material to points which will come up later:
(1) The principal basis for the Tribunal's conclusion was straightforwardly that it preferred the evidence of the relevant Trust witness about how the arrangements came about. However, at paragraph 60 in the reasons, it observed:
"The Claimant was unable to put forward any evidence at all and, indeed, it was not even put to the witnesses in cross-examination that the reason for the implementation or proposed implementation of such policy was because the Claimant had raised previous claims of race discrimination against the first Respondent at the Employment Tribunal."
(2) The Tribunal evidently took the view that the subject-matter of Mr Kalu's complaint was not of great significance, given that the arrangements in question never got beyond proposals and would, even if adopted, have been very unlikely to produce any substantial disadvantage to him.
- Mr Kalu appealed against that decision on a variety of grounds. The appellate history was extremely prolonged but eventually only two grounds were permitted to proceed to a full hearing. The appeal was heard by the Employment Appeal Tribunal, Langstaff J presiding, on 29 January 2014. Mr Kalu was again represented by Mr Elesinnla, the Trust was represented by Mr Robert Moretto and the RSCH consultants by Mr Daniel Matovu. By a judgment handed down on 16 May the appeal was allowed on one of the two grounds and the case was remitted for re-hearing by a fresh Tribunal. The decision was by a majority, Langstaff J being the minority member. The Employment Appeal Tribunal itself gave permission to appeal to this court.
- Both the Trust and the RSCH consultants are now represented before us by Mr Matovu. Mr Kalu was unrepresented and did not wish to make any substantive submissions, though he did make some brief observations both about the background to the claims in general and about one or two more specific points made by Mr Matovu. There is no Respondent's Notice; accordingly, we are not concerned with the ground on which Mr Kalu failed before the Employment Appeal Tribunal.
- The ground of appeal on which Mr Kalu succeeded concerned the exclusion of evidence in the Employment Tribunal. The circumstances are as follows. The case management discussion which I have already mentioned was in August 2010. In the usual way there were orders made both for disclosure of documents and preparation of a bundle and for the exchange of witness statements. So far as the documents and bundle were concerned, Mr Kalu in due course agreed the bundle proposed by the Appellants, subject to one immaterial exception. Exchange of witness statements was ordered to take place no later than 14 days before the hearing. Mr Kalu asked for an extension and did not serve his witness statement until the evening of 7 February 2011 - that is, in effect, four working days before the hearing. He served two witness statements, one from himself and one from Mr Ogueh. Part of his witness statement contained matters of background, principally relating to previous discrimination claims against the Trust by himself and others. I give details, so far as relevant, below. Mr Ogueh's statement likewise consisted in large part of an account of his own previous claim. On 9 February Capsticks and Irwin Mitchell wrote to the Tribunal objecting to the admissibility of this material, which had not been foreshadowed at the case management discussion and was, they submitted, not relevant to any of the issues as identified on that occasion. At the start of the hearing Ms Elliott and Ms Bell made a formal application for the exclusion of the passages in question, which they said were not of sufficient relevance according to the principles set out in my decision sitting in the Employment Appeal Tribunal in [HSBC Asia Holdings BV v Gillespie ]() UK EAT 0417,  ICR 192. Mr Elesinnla opposed the application. The Tribunal adjourned for consideration and on its return ordered the exclusion of a number of paragraphs from the witness statements of Mr Kalu and Mr Ogueh. No formal order was made to that effect and we are dependent on affidavits from Ms Elliott and from Mr Christopher Tutton of Irwin Mitchell for an account of precisely what evidence was excluded, but it is sufficiently clear that the passages in question were paragraphs 9 to 18 of Mr Kalu's witness statement, together with parts of paragraphs 26 and 28, and certain paragraphs which I need not specify from Mr Ogueh's statement.
- As will appear, we are now concerned only with the exclusion of paragraphs 14 to 18 of Mr Kalu's witness statement. I accordingly need say nothing about the parts from paragraphs 26 and 28. So far as paragraphs 9 to 13 are concerned, I need only say that they gave, apparently by way of exemplification of a general averment that the Trust is "a racist organisation", short accounts of claims brought against it in the past by a Dr Lyfar-Cisse and by Mr Ogueh.
- As for paragraphs 14 to 18 of the witness statement, I need not set them out in full. I can summarise them as follows:
(1) Paragraph 14 is headed "Lead Consultant Appointments". It is very short. It says that when Mr Kalu, who was then Principal Lead Consultant for Obstetrics and Gynaecology for the Trust, appointed Mr Ogueh as Lead Consultant for Gynaecology; that appointment "was greeted with hostility by the white consultants at the RSCH and, in particular, by the fourth Respondent [being the Fourth Appellant before us]"; that there was no such criticism of his appointment of the Third Appellant as Lead Consultant for Obstetrics; and that the only reason for the objection to Mr Ogueh was that he was black. This episode is not attributed to any particular date but it appears to be intended as the precursor to the allegations in the following paragraphs, which date from 2007.
(2) Paragraphs 15 to 18 are headed "Letter of no confidence against me as PLC" but they appear to cover two distinct matters. (There are two paragraphs 17. I will refer to the second as paragraph 17A.)
(3) The first of those two matters, which is described at paragraphs 15 to 17, concerns a letter written to the Trust on 3 September 2007, i.e. approximately two years before the events complained of in the present proceedings, in which seven consultants based at the RSCH (including the four individual Appellants before us) declared that they had no confidence in Mr Kalu as Principal Lead Consultant and asked for his removal from that role. Mr Kalu says that the letter was racially motivated and also that the Trust failed to take any proper steps when he raised a grievance about it. This was the subject-matter of one of his previous claims, which was brought against the Trust alone and in relation to which it is said to have admitted liability. At paragraph 16 of his statement Mr Kalu sets out, and seeks to rebut, the reasons given by the signatories of the letter about why they had no confidence in him. The points are made shortly and allusively, with very little detail, but they raise potentially wide-ranging issues about his performance and those of colleagues and managers. They do not raise any allegations of overtly discriminatory conduct. Paragraph 17 says that the RSCH consultants continue to deny that the obstetrics and gynaecology consultants "are segregated along racial lines".
(4) The second matter, which is described at paragraphs 17A and 18 of the witness statement, concerns an episode in December 2007 in which Mr Kalu, as Principal Lead Consultant, removed another Consultant as "Lead for Clinical Risk" because of concerns about how he had investigated a particular incident, and was then himself removed as Principal Lead Consultant by the Medical Director of the Trust. The episode clearly had several aspects to it but again very little detail is given. This too was the subject-matter of one of Mr Kalu's previous claims in relation to which the Trust is said to have admitted liability.
- The Employment Judge did not, when he announced the Tribunal's decision as to the exclusion of those paragraphs, give any reasons for his decision beyond an observation that the Tribunal did not find the evidence in question "probative". But he apparently said that the decision would be covered in the reasons for the Tribunal's eventual decision on the substantive claim. Unfortunately, that was not done and reasons were not given until 25 June 2013, under the so-called Burns/Barke procedure. The reasons then given are quite extensive. I can summarise them as follows. It seems that the Employment Judge was dealing, at least to some extent, with all the excluded paragraphs.
(1) Paragraphs 1 to 6 are introductory.
(2) Paragraphs 7 to 8 summarise the applications before the Tribunal as follows:
"7. At the start of the Hearing the First and Second Respondents made an application to the Tribunal to exclude some four lever arch files and certain evidence from these proceedings. The First Respondent argued that none of the background was flagged up in the ET1 and further the named respondents, two to five inclusive, were not involved in the previous claims.
- The witness statements had been exchanged late and there had no opportunity to investigate fully. The First Respondent argued that by producing so much background evidence would be contrary to the overriding object and they argued that what the Claimant and Mr Orgueh were attempting to do was to have a second bite of the cherry."
(Something has gone wrong with the detailed wording in those paragraphs but the gist is perfectly clear.) The reference to the four lever-arch files is to bundles of the papers prepared in the course of Mr Kalu's previous claims, including the two claims referred to in the passage excluded from his witness statement: I think, though it does not ultimately matter, that they were the bundles produced for the hearings in those claims prior to them being compromised. In correspondence shortly before the hearing Mr Kalu had sought to have these bundles included in the bundles for the hearings but the Appellant's solicitors had refused. They were nevertheless brought to the hearing, and Mr Elesinnla at first sought to have them admitted; but it appears from Mr Tutton's affidavit that he eventually said that he was not pursuing the application.
(3) Paragraph 9 is headed "The Claimant's witness statement at paragraphs 9 to 17". It goes through those paragraphs of the witness statement, making brief comments directed to their relevance. I can ignore what it says about paragraphs 9 to 13. As regards paragraphs 14 to 17 it reads:
"9.5 Paragraph 14 – the events in this paragraph led to the Claimant bringing a race claim against the Respondent which was compromised. That fact was known to the Tribunal. It was not proportionate to explore all of the mattes which led up to that claim and would not have been proportionate and the Tribunal did not see how it could have assisted the Tribunal to answer the allegation before it.
9.6 Paragraphs 15 and 16. To have had to explore the allegations at paragraphs 15 and 16 would have involved a detailed consideration of the Claimant's conduct back in 2007.
9.7 Paragraph 17 – the first paragraph – that is merely an assertion that the obstetric gynaecological consultants were segregated on social lines. That was made clear in the evidence in chief of Dr Kalu and put time and time again by Mr Ellessinla to the named respondents during the Hearing."
(Again, I should say that that passage - and indeed the rest of the Judge's reasons - contains a number of errors of wording, spelling and punctuation which I have not sought to correct; but I think that "social" in paragraph 9.7 must be a slip for "racial".) It will be noted that nothing is said about paragraphs 17A and 18. Mr Matovu suggests that that may reflect the terms of the Burns/Barke request made to the Employment Tribunal which produced the belated reasons, but it is impossible now to establish whether that is the case.
(4) Paragraphs 10 and 11 make the point that none of the RSCH consultants had seen the documents in the four files and repeat that witness statements had been exchanged "only seven days" (in fact, it was four working days) before the start of the hearing.
(5) Paragraphs 12 to 14 summarised Mr Kalu's claim about the swine flu arrangements, making the point that the proposal to which he objected was never in fact implemented and was put on hold when he complained.
(6) The dispositive reasoning as recorded by the Employment Judge appears at paragraphs 15 to 20, which read as follows:
"15. Five days had been set aside for the Hearing. In the events, and with hindsight, it is now clear that had any of the additional documents been considered we would not have dealt with this case in the time allocated. As it was the full five days were taken to hear the evidence and submissions and it was necessary to arrange a further day in Chambers.
- In his draft statement the Claimant led evidence on very many incidents of alleged ill treatment, not only against himself but also against colleagues. This would have led to a very long Hearing and would have placed an enormous burden on both the parties and the Tribunal, would not have assisted the Tribunal in deciding the issues and was disproportionate in the circumstances.
- The particular Tribunal was satisfied that the "background" evidence which the Claimant was attempting to bring did not provide material assistance to the Tribunal in deciding the issues we had to decide; i.e. whether or not the recommendations as to how the Obstetrics department would be run and managed in the event of a swine flu outbreak were unfavourable treatment of the Claimant on racial grounds.
- The exchange of the witness statements took place within a week of the commencement of the Hearing, then the Claimant produced four lever arch files of documents none of which the named Respondents had had an opportunity to see. It was clear that much of the past history of alleged unfavourable treatment that the Claimant and his colleagues had suffered had no relation to the five named Respondents and it was such that the admission of such documents in evidence would be likely to cause inconvenience, certainly additional expense and delay. We considered justice would be best served by its exclusion. The Tribunal did not exclude the Claimant from producing any evidence of actual acts by the Respondent complained of and the subject of the proceedings but the Tribunal did conclude that the matters which the Claimant was attempting to adduce were not sufficiently relevant to the pleaded issues to be admissible. The Claimant was permitted to give evidence that he had brought claims in the past which had been compromised. Similarly Mr Orgueh was not excluded from giving evidence of the details of claims he had brought.
- The act complained of was a discrete act and to have allowed the submission of four lever arch files relating to what the Claimant saw as racially discriminatory conduct would not have assisted the Tribunal in deciding the issues before it. It was produced late and had we admitted it it would have caused the necessity of an adjournment and would have required eventually a much longer Hearing. When the Tribunal considered proportionality we noted that the proposals recommended to be adopted and alleged to be discriminatory were never implemented and that once the Claimant complained about the proposal it was "put on ice".
- For all those reasons it was felt that the interests of justice did not require the Claimant to be permitted to produce the four lever arch files referred to or give the evidence which was precluded."
- Mr Kalu submitted to us that it was very regrettable that the Employment Judge's reasons should have been produced so long after the event. I agree. When a tribunal has to make a significant case management decision in the course of a hearing it should either give reasons at the time or ensure that they are contained in its eventual substantive reasons - as the Employment Judge here apparently said he would do but did not. However, the fact remains that the EAT was obliged to accept them as the authoritative statement of the Tribunal's reasons and to evaluate them on that basis.
- The relevant pleaded ground of appeal to the Employment Appeal Tribunal reads as follows:
"The ET prevented the Claimant from adducing background evidence to demonstrate the preconceived hostility towards him by the Respondents on racial grounds in a legal ruling at the commencement of the hearing which is not even referred to at all in the reserved judgment or reasons. That ruling applies in the face of well-established authorities and principle at EAT and Court of Appeal level. Anya v Oxford University is an exemplar of this trend of judicial authority."
Although that is not quite explicit, it appears that the only matter of which complaint was made was the exclusion of the passages from Mr Kalu's statement: no point is taken on Mr Ogueh's statement or in relation to the bundles of documents. Unhelpfully, the particular paragraphs from Mr Kalu's statement which are said to have been unlawfully excluded are not identified. Mr Matovu submitted that Mr Elesinnla had made it clear at the earlier stages of the appeal that he was not complaining of the exclusion of paragraphs 17A and 18. But that is nowhere definitively stated, and I think it right to proceed on the basis that the complaint refers to all.
- That ground is addressed at paragraphs 33 to 55 of the Judgment of the Employment Appeal Tribunal. The Judgment starts with reference to the authorities, which I need not set out here. As regards the history, it notes at paragraph 39 that:
"... [T]here had been no indication until service of the witness statement that the Claimant intended to rely upon any event earlier than the attempt to introduce the policy in October and November 2009. His ET1 did refer to there having been previous proceedings, and alleged that the Consultants in Obstetrics and Gynaecology were 'segregated along racial lines', accusing the first Respondent of 'chronic racial discrimination problems', but these complaints gave no hint of anything which specifically bore upon a decision which, on the Tribunal's findings of fact had been agreed, amongst others by the Claimant, in October."
At paragraph 40 the Appeal Tribunal holds unanimously that the Employment Tribunal was entitled to exclude paragraphs 9 to 13 and 17 of Mr Kalu's witness statement.
- However, as I have already indicated, the Employment Appeal Tribunal was unable to agree about the remaining paragraphs - that is, paragraphs 14 to 16 and 17A and 18. The Judgment gives first the reasoning of Langstaff J. In short, he believed that the reasons given by the Employment Judge showed that the Tribunal had directed itself correctly and taken into account all relevant considerations and that its decision could not be said to be perverse. As for the majority, its reasoning is set out at paragraphs 50 to 53, which read as follows:
"50. **The majority consider that whilst the Tribunal had a discretion to exclude the bundles of documents submitted on the day of the hearing, the claim here is one of direct race discrimination and victimisation. So far as victimisation was concerned, the protected act relied on was a previously compromised race discrimination claim. His witness statement containing some of the relevant details was supplied to the Respondent and submitted in advance of the hearing. He should have been allowed to give evidence about the case and the subsequent alleged victimisation on racial grounds contained in his witness statement. Whilst paragraphs 9 – 12 might not be directly relevant to his case of direct discrimination, paragraphs 13 – 18 were. The respondents here were also players in the previous case, and the claimant's representative should have been permitted to cross-examine them on this background. It would not have necessitated the admission of the entire case bundles which would not have been proportionate, but the tribunal excluded all the evidence leading up to the latest dispute, and then in effect concluded that the claimant had failed to present any evidence of racial discrimination. That must be an error of law.
- The majority view on the evidence point is that the underlying principle for the Tribunal is the relevance of the evidence before it.
- The Tribunal has wide discretion and was entitled to exercise its discretion in the instant case. However, it is important that the Tribunal sets out clearly the basis of how this discretion is exercised and show in its analysis and judgment how this was exercised. It is unclear from the Tribunal's reasoning how this discretion was exercised.
- The Tribunal refused to allow the Claimant to adduce evidence set out in sections 14-18 of his witness statement and concluded that the Claimant was unable to put forward any evidence at all in reaching its conclusion. The Tribunal failed to assess the relevance of the evidence before it before reaching its conclusion. The question for the Tribunal to consider was whether the evidence was of 'sufficient relevance' and materially relevant. This was an important step in the process in considering the relevance of the evidence and in exercising its discretion on whether the evidence should be excluded. The Tribunal had to decide what evidence was of 'sufficient relevance' and materially relevant to the claim before it. It was not open to the Tribunal to reject all the evidence before it and to conclude that the Claimant had not adduced any evidence - as the ET had not gone through the process of deciding or evaluating the relevance of the evidence to the Claimant's case. This was an error of law."
- The Appellants' sole ground of appeal before us is that the Employment Appeal Tribunal was not entitled to interfere with the decision of the Employment Tribunal because, as Langstaff J would have held, no error of law had been shown in the exercise of its case management discretion. Mr Matovu submits that the principles concerning the exclusion of evidence in claims in the Employment Tribunal, and more particularly discrimination claims, were correctly set out in the decision in Gillespie to which I have already referred and that it was clear that the Tribunal, which had been referred to Gillespie by counsel although it is not explicitly mentioned in the Employment Judge's reasons, had applied the principles and guidance there stated in a way which was plainly open to it.
- I start my consideration of the issues by saying that I would endorse, with I hope appropriate diffidence, the summary of the relevant principles at paragraph 13 of my own judgment in Gillespie - see pages 198 to 203 - and I see no advantage in my repeating them in extenso here. The most relevant of the propositions in that passage for present purposes is number 10. As I there record, it is well recognised in the discrimination case-law that evidence about conduct on the part of the respondents beyond the acts complained of (typically, but not always, prior conduct) may be highly relevant in deciding whether the acts complained of were discriminatory. The obvious example of this line of authority is, as indeed was pleaded in the grounds of appeal to the EAT, Anya v University of Oxford  EWCA Civ 405,  ICR 847. But it must also be recognised that there is a tendency for claimants to rely on that line of authority to seek to introduce a wealth of background evidence which is said to support the primary claim but which on analysis has little or no probative value and adds substantially to the length and cost of the proceedings - as well as creating a real risk of distracting attention from the real issues (as occurred in Qureshi v Victoria University of Manchester . I would refer to the passages from the judgments of Browne-Wilkinson J in Chattopadhyay v Headmaster of Holloway School  ICR 1323 and Mummery LJ in Commissioner of Police for the Metropolis v Hendricks  ICR 530 which I set out, or refer to, under proposition 9 in Gillespie (see page 203B-C). There will certainly be cases in which, as I put it in proposition 10, the Tribunal is satisfied that the evidence in question will not be of material assistance in deciding the issues in the case before it and will cause inconvenience, expense, delay or oppression if admitted, in which case the evidence in question not only may but should be excluded.
- In my view Mr Matovu is plainly correct in his submission that the Employment Tribunal directed itself in accordance with that approach. That is clear in particular, but not only, from paragraphs 16 and 17 of the reasons supplied by the Employment Judge. The question for us is whether its conclusion was nevertheless wrong.
- That being so, and the question being one involving what is essentially an assessment rather than a hard-edged question of law, the Employment Appeal Tribunal should only have interfered with the decision of the Employment Tribunal if that decision was plainly wrong. I do not believe that that was the case. I agree with Langstaff J that the factors identified by the Employment Judge were fully capable of supporting the Tribunal's decision. In summary:
(1) What was excluded was not the fact that there had been a history of previous claims of racial discrimination by Mr Kalu and also Mr Ogueh against the Trust, nor that there was the marked difference in ethnicity in the obstetrics and gynaecology consultants at the PRH and the RSCH. Those matters were in evidence and indeed were apparently pursued by Mr Elesinnla in cross-examination. All that was excluded was the further detail, such as it was, of those two previous claims contained in the paragraphs in question. But in fact the details given were at a very general level and did not, as I have already observed, allege any overtly discriminatory conduct. They could not, even potentially, have yielded any support for the allegations of discrimination actually in issue unless they had been fully explored in evidence with the Trust's witnesses. The Tribunal was entitled to be sceptical, on the basis of what was in the statements, about whether that was an exercise that was likely to provide any useful material, particularly since the events were over two years previously and the nature of the discrimination now complained of, being the very discrete issue which it had identified, was very different in character from the discrimination which had been the subject-matter of the previous complaints. I would add (though the Employment Judge does not make this point explicitly) that the exercise could not have usefully or fairly be gone into without referring to the contemporary documents; yet Mr Elesinnla had not pursued the application for those documents to be before the Tribunal.
(2) Even if there was some reason to believe that such an exercise might have yielded material of substantial value in assessing the actual issues before the Tribunal, Mr Kalu had given no notice of any intention to refer to that material until very shortly before the hearing. If a party wishes to raise major factual matters not indicated, as this was clearly not, in the claim form, it is incumbent on him or her to make that clear at the case management discussion (or, as it is now called, the preliminary hearing), so that the other party is on notice and appropriate decisions can be made about disclosure, witness statements, estimates and other case management matters. That was not done here. There is nothing in the record of the case management discussion to suggest that the Appellants should have anticipated that Mr Kalu was seeking, in effect, to re-open the merits of the claims of discrimination which had been previously compromised. That was confirmed by his initial agreement to the Appellants' proposed bundle of documents, which covered none of this ground. The Appellants and their witnesses would have prepared on that basis. The Tribunal was plainly right to take the view that the admission, at least in any useful way, of this material would have necessitated an adjournment and also in all probability a hearing with an even longer estimate than that already provided for. It is no answer to say that the Trust, as a respondent, and the RSCH consultants, as individuals whose conduct had been put in issue, will have been aware of the previous claims. That may be so (though I am far from sure that it would be wholly true of the consultants, who were not parties and would not, for example, have had access to the bundles of documents generated by the previous claims). But to the extent that it is true it does not meet the points about disproportionate cost and delay.
(3) The Tribunal was in my view fully entitled to take into account its assessment that this was a claim of limited significance. As I have said, the chance of any substantial detriment to Mr Kalu from the contentious contingency arrangements was remote and in the event had disappeared altogether. It is hard to see how, even if he had succeeded in showing that those arrangements were racially or victimisatorily motivated, he would have recovered any substantial award. That assessment is relevant to the Tribunal's assessment of the proportionality of allowing in material designed to re-open the matters of past history.
- That is no more than my reformulation, perhaps unnecessary, of the matters referred to by the Employment Judge. I have no doubt that, taken together, they represented a proper basis for the decision which the Tribunal reached.
- It will be sufficiently apparent from what I have already said why I respectfully disagree with the reasoning and conclusion of the majority, which seems essentially to have proceeded on the basis that the fact that the previous complaints involved the RSCH consultants was sufficient to mean that evidence about those complaints was necessarily relevant, and which also assumes that cross-examination could usefully have proceeded without reference to the bundles of documents: see what they say at paragraph 50. The majority also say at paragraph 55 that the Tribunal did not "assess the relevance of the evidence in question before reaching a conclusion". I cannot accept that. It seems to me clear from the passages that I have read that it did do just that.
- I should also say that paragraphs 50 and 55 of the judgment appear to betray a misunderstanding of paragraph 60 of the Employment Tribunal's reasons, which I have set out above. The Tribunal in that passage was not saying, as the majority appears to have read it, that there was no evidence whatsoever to support the claim of racial discrimination. The passage is confined to the much more limited point that there was no evidence, particularly since the Appellant's witnesses had not been cross-examined on the point, that the fact of Mr Kalu's previous claims had influenced the proposals made with regard to the swine flu pandemic - in other words, that there was no evidence of causation with regard to the victimisation claim.
- For all those reasons, I would allow the appeal and restore the decision of the Employment Tribunal dismissing Mr Kalu's claims.
LORD JUSTICE CHRISTOPHER CLARKE:
- I too would endorse the approach of my Lord in Gillespie, and for the reasons which he has given I agree that this appeal should be allowed.
LORD JUSTICE MOORE-BICK:
- I also agree that the appeal should be allowed.
Order: Application granted
Published: 14/08/2015 09:59