Challenging compensation in discrimination claims

In Jowett v HSE, the employee won his discrimination claim on the basis of perceived disability when a job offer was withdrawn.

He had previously worked for the Health and Safety Executive (HSE) in a similar capacity some years earlier. In that previous period of employment, the employee had not completed his training and had left after three years. The employee was claiming 5 years’ loss of earnings in his discrimination claim, so the employer wanted to use his previous employment with them to show that it was unlikely that he would have remained in employment with them for that period of time.

The employment tribunal refused to allow the documents into evidence. They said some documents were ten years old and would not be able to prove or disprove the employee’s arguments about how long he would have remained in employment this time round. The employer appealed.

The EAT agreed that the documents were admissible. The documents were relevant in a way that went beyond the theoretical. The documents showed the employee’s employment history in a very similar job which he had left after three years, having chosen to do very different work in the interim. The employment tribunal judge had not properly considered that the tribunal would need to assess compensation based on a percentage prospect basis – how likely it was that the employee would remain in employment for the full five years.

The judge had also jumped the gun by dealing with admissibility at a preliminary stage rather than making a decision at the remedy hearing. No reasonable tribunal could have concluded that the documents in question were of such low relevance that they were inadmissible.

This case is a useful reminder about the admissibility of evidence in tribunal claims. It also shows that an employer is entitled to challenge an employee’s compensation claim robustly even when there has been a finding of discrimination. This will be a welcome relief in cases where many years of future loss are being claimed and there is evidence which suggests that the employee may not have gone the distance.