In order to ascertain whether evidence is materially relevant to a claim, tribunals have to evaluate it and then use its discretion to decide whether it should be excluded or not. As the tribunal in Kalu v Brighton & Sussex University Hospitals NHS Trust and ors had failed to go through that process, the Employment Appeal Tribunal (EAT) held that its decision on race discrimination could not stand.
Basic facts
The Trust had to draw up a contingency plan to ensure it had medical cover for its obstetric and gynaecology departments at hospitals in Brighton (where most of the consultants were white) and Haywards Heath (where most of the consultants were black or minority ethnic, BME) in the event of a pandemic. At a meeting in August 2009, it was agreed in principle that if only one registrar was available between the two hospitals, that person should work at Brighton and a consultant would have to provide cover at Haywards Heath.
Identifying the white consultants as comparators, Dr Kalu claimed race discrimination on the basis that BME consultants were being asked to work as registrars instead of consultants. He also claimed victimisation in relation to previous race discrimination claims he had made against the Trust.
A few weeks before the case was due to be heard, Dr Kalu asked for the documentation from his previous tribunal cases to be included in the trial bundle. He made these available for the first time on the morning that the hearing was due to begin. Six days before the hearing, he served two witness statements which related to proceedings which had previously been settled. The Trust objected to the late documentation and asked for the irrelevant parts of his statements to be excluded.
Tribunal decision
The employment tribunal decided to refuse to admit the evidence on the basis that it was not materially relevant to the case.
It also dismissed the claim of race discrimination as the race and ethnicity of the consultants at Haywards Heath had nothing to do with and were not a factor in the decision to make Brighton the priority site. A white consultant at Haywards Heath would not have been treated any differently. In any event, the comparators were not in “like circumstances”, since the two sites had different features which went to the heart of why Brighton was chosen over Haywards Heath.
Dr Kalu appealed, arguing that, by excluding the evidence, the tribunal had prevented him from adducing background information showing the Trust’s racial hostility towards him. In addition, it was wrong about the white consultants not being appropriate comparators.
EAT decision
The EAT held that tribunals should think long and hard before excluding evidence which, in this case, might have been of some relevance. However, although tribunals could not admit evidence unless it was relevant, that did not mean to say that it could not exclude evidence that was relevant.
In order to ascertain whether the evidence was materially relevant, tribunals have to go through a process of evaluating it and using their discretion to decide whether it should be excluded or not. As the tribunal in this case had failed to do that, it was not in a position to decide what evidence was materially relevant to the claim and whether it could have proved the possible motivation of the Trust. This constituted an error of law which meant that the decision on race discrimination could not stand.
It followed that the error of law in refusing to admit relevant and material evidence undermined the tribunal’s conclusions and the appeal therefore had to be allowed.