EAT Practice and Procedure : Admissibility of Evidence – RACE DISCRIMINATION: INDIRECT, COMPARISON – A black consultant whose previous complaints of race discrimination against him by the respondent Trust had been settled complained of a policy, adopted amongst others by him, designed to meet a staffing crisis in the case of such as a pandemic, which would result in consultants working at the site he did potentially, if improbably, having to cover for the work usually done by registrars whereas white consultants at a sister site would not have to do so. He named the white consultants at that site as comparators. The ET held that they were not in like circumstances, since the two sites had different features which were significant and material to the policy. It also held that the reason for adopting the policy had nothing to do with the claimant’s race. It also ruled, at the outset of the hearing, that the Claimant could not rely on some passages in his witness statement as to the substance of which there had been no advance intimation, nor admit a large bundle of documents not earlier disclosed in support of them.
Held that an appeal on the ground that the ET had approached the comparison wrongly failed: although the ET was not logically entitled to regard the differences between the sites as relevant, the conclusion as to the ‘reason why’ the policy had been adopted rendered the decision unassailable – subject only to the second ground as to the admission of evidence. As to that, the majority of the Appeal Tribunal held that although an ET had a discretion to exclude evidence which was only of marginal relevance, and to refuse to accept documents which would disproportionately overburden and significantly prolong the hearing, it was wrong to exclude this evidence in this case since it was important in proving the possible motivation of the Respondents. In their view, the ET did not go through the process of deciding or evaluating the relevance of the evidence to the Claimant’s case. This was an error of law.
Langstaff J
[2014] UKEAT 0609 – 12 – 1605
Bailii
England and Wales
Employment
Updated: 04 December 2021; Ref: scu.526090