“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. 8. 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”
“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. 16. 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. 17. 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. 18. 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. 19. 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”. 20. 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.”
“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.”
“... [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.”
“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. 51. The majority view on the evidence point is that the underlying principle for the Tribunal is the relevance of the evidence before it. 52. 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. 53. 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.”