Disability Discrimination - Documents from Previous Employment Are Relevant to Remedy
The Employment Appeal Tribunal (EAT) has found that documents relating to a claimant's past employment can be taken into account at a forthcoming remedy hearing
What Was the Background to the Claim?
In the case of Health and Safety Executive v Jowett, the HSE withdrew a job offer from the claimant before he took up his post. The claimant brought a successful disability discrimination claim in respect of the withdrawal of the offer, and is seeking compensation amounting to five years' loss of earnings.
The claimant had previously been employed by the HSE in a similar position between 2008 and 2011. The HSE sought to include a number documents relating to the claimant's previous employment in the evidence bundle, arguing that this documentation would show the claimant would not have remained in post for five years had he commenced the role. The claimant argued the documentation was irrelevant to his current claim and should be inadmissible.
At a case management hearing, the Employment Judge agreed that the documentation was inadmissible. The HSE appealed to the EAT.
What Did the EAT Decide?
The EAT overturned the Employment Judge's decision. The Tribunal is under an obligation to assess the chance of the claimant remaining in post for five years. By excluding the documentation at the case management stage, the Employment Judge was effectively depriving the HSE of the opportunity to present its case on loss of earnings at the remedy hearing.
The EAT substituted an order that the documents were admissible and could be relied on by both parties at the remedy hearing.
What Can Employers Learn from This Decision?
Whilst this is a fact sensitive case, it is a useful demonstration of the right of a respondent to challenge the rationale behind the value of the compensation sought even after an adverse finding at the Employment Tribunal.