When considering a claim for compensation, the Employment Appeal Tribunal (EAT) held in Health and Safety Executive v Jowett that tribunals should not usually decide in advance of the remedy hearing what documentary evidence can be heard. In particular, it held that it is not always possible for a tribunal to determine the relevance of documentary evidence at a preliminary hearing.
After offering Mr Jowett a job as a trainee Health and Safety Inspector on 28 December 2018, the HSE withdrew the offer before he was due to start on 4 March 2019. Mr Jowett then lodged proceedings for disability discrimination and claimed five years’ loss of earnings (about £250,000), as well as related pension loss.
The HSE asked the tribunal for permission to disclose certain documents relating to an earlier period of employment when Mr Jowett had held the role of trainee inspector between April 2008 and 17 November 2010 when he resigned prior to completing his training. It argued that these documents would support its contention that there was at least a substantial prospect that he would not have remained in the role for five years, as claimed, had he started his employment in 2019.
Mr Jowett objected to the HSE’s application, arguing that the documentation was no longer relevant and that, according to advice from the Information Commissioner’s Office (ICO), the HSE had retained the documents in breach of data protection rules.
At a preliminary hearing, the tribunal judge held that the documents were inadmissible as she could not “see how the tribunal that hears this claim will make any relevant findings based upon such old documents".
Mr Jowett’s claim for disability discrimination was subsequently upheld by a tribunal a few months later. Although the HSE did not appeal this judgment, it appealed the decision not to allow the documents to be admitted at the upcoming remedy hearing.
Upholding the appeal, the EAT found that the tribunal had failed to have regard to established case law which clearly states that tribunals “should have regard to any material and reliable evidence that might assist it in fixing just compensation … The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence”.
In addition, the EAT said that the judge was wrong to determine the relevance, or in this case, the lack of relevance, of the documents at the preliminary hearing stage. She did not suggest that there was any particular reason why the evaluation needed to be made at this juncture and could not await a decision at the remedy stage.
The factual issues around the circumstances in which Mr Jowett left his earlier employment and the extent to which that provided an indicator of the chances he would have remained in the second period of employment for five years (had the job offer not been withdrawn) were very much in dispute. By making the decision, the judge deprived the remedy tribunal of the opportunity to consider the relevance of these documents to the issues to be determined, namely the likelihood of the claimant remaining in his new role and for how long.
In relation to the argument about data protection obligations, the EAT pointed out that the ICO had also stated that the HSE was entitled to use the material in legal proceedings. In any event, the EAT held that it did not follow that the documentary evidence was inadmissible and once there was the prospect of legal proceedings, it fell within one of the data protection exemptions.
The EAT concluded that the fact that the HSE had offered Mr Jowett a position knowing about his previous employment with them did not amount to a “knock-out blow”. What was key was the fact that he was seeking five years’ loss of earnings which could not be determined without relevant evidence. This was not a case where admission of the evidence would be likely to prejudice his case. He was still able to give evidence that the two periods of employment were distinct.
The case is consistent with existing case law and serves as a reminder that where a worker has been discriminated against by having an offer of employment withdrawn, the employer can submit evidence which is relevant to assessing that future loss.