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How evidence can be excluded in Employment Tribunal proceedings

Clipped paper stacks, evidence for court

Tribunal proceedings often turn on the strength of factual evidence in support of the legal arguments. The question of what evidence can and should be used in proceedings is therefore of significant importance to litigants and one which should be given due consideration during early stages where litigation is contemplated.

The Employment Tribunal has wide discretion as to admissibility of evidence, but the general rule on admissibility turns on relevance to the issue(s) between the parties. The question is judged according to the information’s probative or dis-probative value to the issue being decided.

However, evidence can be – and sometimes is – excluded, usually on the application of a party to the proceedings, often with significant repercussions to the party seeking to rely on the excluded evidence.

This issue was recently examined in the Employment Appeal Tribunal (‘EAT’) case of Health and Safety Executive v Jowett [2022] EAT 151.  Mr Jowett had succeeded in a claim relating to disability discrimination following the withdrawal of a job offer by the HSE. By way of remedy, he claimed future loss of earnings for a five-year period. The HSE disputed this on grounds that he would not have remained in the role for five years had the offer not been withdrawn. To support its argument, the HSE wished to rely on documents from Mr Jowett’s previous employment with the HSE some ten years earlier. A dispute arose around the admissibility of this evidence as Mr Jowett disputed: (1) the relevance of the information, and (2) the lawfulness of the information where the HSE was in breach of its data protection obligations under the GDPR in retaining it for such a long period (about which he had made a complaint to the ICO).

The Employment Tribunal found that the documents may be theoretically relevant, but it was a marginal case and it ruled them to be inadmissible. On the question of whether the material had been unlawfully retained, the Tribunal found that this was not determinative to the question of inadmissibility. The HSE appealed.

On the question of relevance, the EAT found that the information was relevant and not just theoretically so given the similarity of the old and new roles. Furthermore, it held that regard must be had to material and reliable evidence in order to award just compensation. Even when Mr Jowett raised the issue of “victim blaming”, the EAT said that despite the finding that the HSE had discriminated against him, it was entitled to challenge the proposition that supported this part of the compensation claim.

On the data protection issue, the EAT held that a possible data protection breach does not necessarily mean evidence will be inadmissible. The EAT considered that it was important to strike a balance between competing public interests: allowing the parties to rely on relevant evidence in tribunal proceedings, while also holding organisations to their legal obligations in respect to data protection.

In this case, the EAT decided that this information was highly relevant to the question of Mr Jowett’s future loss. It demonstrated his tendency to move around and therefore, notwithstanding the discrimination, the likelihood that he would have left the HSE’s employment in any event.

Key take-aways on excluding evidence at Tribunals

Although this case does not cover new ground in respect of the rules around admissibility of evidence, it makes abundantly clear that primary consideration remains the question of relevance. It also continues the trend in caselaw which seems to show that in practice the Tribunal tends to permit evidence rather than exclude it.

The case acts as a cautionary tale of how the outcome of a case may be altered by the inclusion (or exclusion) of a particular piece of evidence – Mr Jowell’s award may be significantly less than anticipated with this evidence now admitted.

There will be cases where there is significant advantage in excluding evidence as a matter of case management. However, even where evidence is inadmissible because it is not relevant, it does not necessarily mean that litigants should always seek to have it excluded and the cost and trouble involved in a preliminary hearing ruling must be justified.

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