Employees claiming that their treatment was discriminatory often seek to support this by making allegations going back many years to establish a continuing discriminatory culture. The EAT recently ruled that a tribunal could exclude allegations which were not sufficiently relevant. Employers should consider whether to apply for such an order where appropriate, given the expense and delay in defending such allegations.
A claimant brought sex discrimination and harassment claims relating to her work in London from 2006. Allegations of harassment between 1991 and 2001 in the Far East were ruled admissible at a pre-hearing review (on the basis that they were relevant background to establish a culture of institutional discrimination) and the case was listed for 40 days.
On appeal, the EAT ruled that the earlier allegations were insufficiently relevant and would involve disproportionate cost and time, given that the personnel and departments were not those involved in the discrimination complained of. The judgment includes useful guidance for employers seeking to have historic allegations excluded.
The EAT also agreed in principle that an employment judge at a case management discussion may invite the parties to agree that only certain claims will be heard and that the outcome of the remainder will follow the outcome of those heard. If the parties do not agree, in appropriate cases the judge could order a split hearing, leaving the unnecessary claims to the second hearing in the hope that it will not be needed. (HSBC Asia Holdings v Gillespie, EAT)