Respondent entitled at remedy hearing to rely on documents about why claimant previously left employment (HSE v Jowett)

In circumstances where (1) the respondent had withdrawn a job offer to the claimant, (2) the claimant had previously been employed by the respondent in a similar role but had resigned following a period of performance management, (3) the claimant was seeking five years of loss of earnings as a result of the discriminatory withdrawal of the job offer, the respondent was entitled to rely on documents from the earlier period of employment to support its contention that there was at least a substantial prospect that the claimant would not have remained in the role for five years had his employment commenced. Also, even if the respondent had acted in breach of data protection law by not deleting the documents relating to the previous period of employment, it does not follow that the documentation was inadmissible in the employment tribunal proceedings as the primary consideration remains the relevance of the material to the issues before the employment tribunal, according to the Employment Appeal Tribunal (EAT).

Health & Safety Executive v Jowett [2022] EAT 151

What are the practical implications of this decision?

This judgment offers reminders that:

• the task of assessing future losses may be speculative and it is incumbent on the tribunal to assess the chance of the claimant remaining in the role, even if it could not be shown on a balance of probabilities that the claimant’s employment would have lasted less than the period claimed
• it is generally better to leave assessment of relevance of evidence to the tribunal of fact, rather than excluding the documentation at the interlocutory stage (on the facts of this case, excluding the evidence at a preliminary stage was to deprive the respondent of the ability to effectively present its case on loss of earnings at the remedy hearing).

The judgment also sets out a helpful approach to the admissibility of evidence when there is an allegation of a data protection breach. In this case, as well as arguing that the documents about his previous period of employment were irrelevant, the claimant also submitted that they should not be admitted into evidence because the respondent had wrongfully retained them in breach of its data protection obligations. While the EAT does not get into the full details of the alleged data protection breach, it does set out an approach which may be helpful when dealing with similar issues, namely that:

• even if there was a breach of data protection law it does not follow that the documentation is inadmissible in the employment tribunal proceedings
• the primary consideration remains the relevance of the material to the issues before the tribunal
• an analogy can be drawn with the approach adopted for covert recordings
• a balance has to be struck between the competing public interests of, on the one hand, allowing the parties to rely on relevant evidence in the employment tribunal proceedings and, on the other, holding organisations to their legal obligations in respect of data protection.

In the particular circumstances of this case, the documents were plainly relevant to a significant issue and if there was a breach of data protection obligations (in respect of not deleting the documents once the GDPR came into effect) it was for a limited period of time (around nine months from when the GDPR came into effect to when the claimant indicated his intention to commence litigation). There was no reason, particular to these documents, identified before the employment tribunal as to why the data protection issue should lead to their exclusion.

Case details

• Court: Employment Appeal Tribunal
• Judge: The Honourable Mrs Justice Heather Williams
• Date: 19 December 2022 (published)

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