Dr J Al-Tarkait v Kuwait Oil Company (KSC): 2206236/2016

Case Number: 2206236/2016 - 1 - zd EMPLOYMENT TRIBUNALS Claimant: Dr J Al-Tarkait Respondent: Kuwait Oil Company At: London Central On: 9 – 12 January 2017 Employment Judge: Dr S J Auerbach Members: Ms K A Church Ms M Jaffe Appearances For the Claimant: Mr R Hignett, counsel For the Respondent: Mr M Duggan, counsel REASONS Introduction 1. This case was listed for a ten-day full merits hearing opening on 9 January 2017. In the event the Tribunal dealt with a succession of what amounted to case- management matters. On day three we granted an application by the Respondent to postpone the full merits hearing proper; and on day four we relisted it and gave further case management directions, including in relation to costs issues 2. A minute recording the matters that we dealt with, and orders made, has been promulgated. One of those matters concerned what were described as evidential issues, set out at paragraphs 1(a) – (f) of the draft list of issues that was before us. We gave an oral reasoned decision in relation to that matter on day one; but, before the conclusion of the hearing on day four, Mr Hignett, on behalf of the Claimant, applied for written reasons. These are accordingly now provided. 3. The context is this. There is no dispute that the Claimant was, at all times during his employment with the Respondent, a disabled person in law, his disability being limb girdle muscular dystrophy. Unfortunately, at a certain point, as a result of a fall, the Claimant became a permanent wheelchair user. At the time when we Case Number: 2206236/2016 - 2 - considered this application, in his pleadings and witness statement, he put the date on which he began to use a wheelchair as being in or around May 2014. 4. In October 2015 an internal investigation committee was established by the Respondent. Ultimately, following an expansion of its remit, that committee made a recommendation that the Claimant be dismissed for misconduct. He was dismissed for that given reason in March 2016. Along the way he was, for a period of time, suspended. His appeal against dismissal was unsuccessful. 5. Prior to the start of our hearing the Claimant’s complaints were of (a) Unfair dismissal; (b) Wrongful dismissal; (c) Direct disability discrimination (section 13 Equality Act 2010); and (d) Failure to comply with the duty of reasonable adjustment. 6. The direct discrimination complaints related, solely, to the investigation, the suspension and the dismissal. Ultimately by agreement, we permitted the Claimant to add complaints that the same conduct amounted, further or alternatively, to discrimination contrary to section 15 of the 2010 Act, the “something” relied upon for that purpose being (only) the fact that he began to use a wheelchair. The reasonable adjustments complaints all relate to adjustments which the Claimant says ought reasonably to have been made, but weren’t, to address disadvantages that he experienced after he became a wheelchair user. 7. The parties agreed on day one that certain matters referred to in the draft list of issues (at paragraphs 5(a) to (d)) need not be considered by the Tribunal. However, we heard argument on the Respondent’s application also to exclude from consideration at the full merits hearing, the Claimant’s factual allegations relating to the matters referred to in paragraphs 1(a) to (f) of the list of issues before us (save, at (f), in relation to the vacancy which arose in 2016). 8. These matters were set out in the list of issues in the following terms: Over the period from 2007 to his dismissal in March 2015 was there a pattern in C’s career history of him being held back in terms of grade and promotional opportunities and, if so, what is the explanation for this? (a) In January 2007, transferring him to work in the London office as “Medical Advisor” on a grade below that which he had been working at in Kuwait and the normal grade for this role; (b) In July – October 2007 and upon C challenging the position, changing his role form “Medical Advisor” to that of “Medical Specialist” (a role that did not exist in the structure at the London office) which the effect of keeping him on a lower grade; (c) In August 2010 appointing him to the role of Deputy Head of London Office and Medical Attache on grade 17 when C ought to have been appointed on grade 18 as a minimum; (d) In late 2013, when awarding him grade 18 status for the role he was appointed to in August 2010, refusing to backdate his pay for more than 9 months; Case Number: 2206236/2016 - 3 - (e) Not promoting him in the last 5 years of his employment (since August 2010); (f) Not considering C as a candidate for Head of London Office when the vacancy arose in 2010 and 2013 and 2016. 9. Mr Hignett confirmed that the Claimant did not seek to bring additional substantive complaints of discrimination in respect of any of these matters. Rather, he sought to have the Tribunal consider evidence, and make findings, about them, because, he argued, they were matters that amounted to relevant background to the actual complaints. What is meant by “background”, to spell it out, is that it was contended that these were all matters in respect of which the facts found would be probative of (one or more of) the actual complaints of discrimination, whether by throwing light on the reasons for the actual treatment complained of, by way of support for a common law inference, or the shifting of the statutory of burden of proof, or otherwise. 10. Mr Duggan submitted that we should not consider the evidence or factual allegations relating to any of these matters, for either or both of two reasons. Firstly, he said that they were not “sufficiently relevant”. We use that expression as shorthand to describe the test explained by the EAT in HSBC Asia Holdings BV v Gillespie [2011] ICR 192. Secondly, he submitted that, even if we considered that this material was sufficiently relevant, so as to, as it were, cross the Gillespie threshold, it required an amendment to the Claimant’s existing pleaded case, to enable it to be introduced, which amendment, he said, we should not permit. 11. We deal first of all with the Gillespie point. 12. At paragraph 10 of the decision in Gillespie the EAT (Underhill P, sitting alone) set out the position regarding the power of the Tribunal to exclude evidence on the ground that it is not, or not sufficiently, relevant, as follows. (1) The basic rule is that if evidence is relevant it is admissible and if it is irrelevant it is inadmissible. In O'Brien (above) Lord Bingham said, at para. 3 (p. 540 F-G): "Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in R v Kilbourne [1973] AC 729, 756: 'Evidence is relevant if it is logically probative or disprobative of some matter which requires proof … relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.'" (2) Crucially for present purposes, relevance is not an absolute concept. Evidence may be, as it is sometimes put, "logically" or "theoretically" relevant but nevertheless too marginal, or otherwise unlikely to assist the Court, for its admission to be justified. As Hoffmann LJ said in Vernon v. Bosley [1994] PIQR 337, at p. 340: "The degree of relevance needed for admissibility is not some fixed point on a scale, but will vary according to the nature of the evidence and in particular the inconvenience, expense, delay or oppression which would attend its reception. … [A]lthough a Judge [in a civil case] has no discretion to exclude admissible evidence, his ruling on admissibility may involve a balancing of the degree of Case Number: 2206236/2016 - 4 - relevance of the evidence against other considerations which is in practice indistinguishable from the exercise of a discretion." (3) There may be some divergence in the authorities as to whether the exclusion of evidence in such cases is to be described as being on the basis that the evidence in question is, properly understood, not relevant at all or rather that it is not sufficiently relevant. That question is reviewed in Phipson on Evidence (17th ed.) at para. 7-07. In my view the language of "sufficient relevance" gives a better idea of the nature of the judgment required; but the difference is one of terminology only. Likewise, it makes no real difference, as Hoffmann LJ observes in Vernon v. Bosley, whether the exercise of judgment required is described as the exercise of a discretion. (4) There is, as I have already said, no distinction in principle between the powers in this regard of the civil courts – before or after the introduction of the CPR - and those of the employment tribunal. If anything, it is arguable that employment tribunals, while guided by the same principles, should be rather more willing to exclude irrelevant, or marginally relevant, evidence. In Noorani (above) the Court of Appeal upheld the decision of a tribunal to refuse an application for witness orders on the grounds that the evidence which the witnesses would have given was insufficiently relevant to the claimant's case. Henry LJ said, at paras. 31-32: "30. .... The courts have long recognised that relevance is a matter of degree for the discretion of the trial judge. Thus in Cross & Tapper on Evidence (8th edition) at p. 61: 'Relevancy is a matter of degree and it is as idle to enquire as it is impossible to say whether the evidence was rejected in the above two cases because it was altogether irrelevant, or merely because it was too remotely relevant. It may also, on occasion, require a balance to be struck between the probative force of the evidence and external pressure vitiating its use,...