Mulumba v Partners Group: EAT upholds case management decisions on issues list and reply witness statement

The Employment Appeal Tribunal has dismissed both grounds of appeal in Mulumba v Partners Group (UK) Ltd & Anor, confirming that the Employment Tribunal committed no error of law in two case management decisions made during a final liability hearing: the removal of a specific direct discrimination allegation from the list of issues, and the exclusion of several passages from the claimant's reply witness statement.

Ms Mulumba was engaged by Partners Group USA Inc on an MBA Associate Programme from August 2015. Following rotations in the United States and Switzerland, she transferred to London in March 2017. When her employment terminated on 31 August 2018, she brought claims including direct sex and race discrimination, automatic unfair dismissal on whistleblowing grounds, ordinary unfair dismissal, and protected disclosure detriment.

A substantial preliminary dispute concerned territorial jurisdiction and the basis on which Ms Mulumba's employment had continued beyond the normal two-year maximum of the Associate Programme. The respondents described this extended period as an "Accommodation Period", a characterisation Ms Mulumba strongly contested. Through two preliminary hearings and a successful respondents' appeal to the EAT, the tribunal ultimately fixed 7 September 2017 as the date from which UK jurisdiction was established.

The July 2018 meeting issue

The agreed list of issues had included an allegation — carried verbatim from the claim form — that Ms Mulumba had been told disingenuously at a meeting in July 2018 that her contract was ending by prior agreement when no such agreement had existed. By the time of the liability hearing, the respondents had removed this issue on the basis that the territorial jurisdiction judgements had already resolved the underlying factual dispute.

Employment Judge Nicolle's tribunal agreed, characterising inclusion of the issue as a transparent attempt to circumvent the prior rulings on the Accommodation Period.

HHJ Tayler upheld that decision, though primarily on a narrower procedural ground: counsel then representing Ms Mulumba had not argued, when contending for reinstatement of the issue, that the relevant factual findings were unnecessary to the jurisdiction determination. That point could not be raised for the first time on appeal, following the principle in Secretary of State for Health v Rance [2007] IRLR 665. The EAT also noted that the tribunal had in any event determined the dismissal was not discriminatory, and the same factual ground was covered in the unfair dismissal analysis, leaving no realistic prospect that the issue, had it remained, would have been decided in Ms Mulumba's favour.

Exclusion of reply witness statement passages

Both parties had been permitted to serve reply witness statements. Several passages of Ms Mulumba's reply — served a little under a fortnight before the liability hearing — were excluded by the tribunal.

Paragraphs 17 to 19 described what Ms Mulumba characterised as a "caste system" defined by ethnicity, and criticised the respondents' approach to employee benefits and visa support. The tribunal found these to be new matters outside the pleaded case, not genuine replies to the respondents' witness evidence. Paragraph 20 detailed the departure of four Black colleagues from the Associate Programme intake. The tribunal excluded this on the basis that the respondents would be significantly prejudiced without the opportunity to adduce evidence about those individuals' circumstances. Paragraph 31 raised, for the first time, an incident of alleged racial profiling by reception staff at Heron Tower in July 2017, with the only conduct attributable to the respondent being an asserted failure by a manager not otherwise named in the proceedings to arrange a meeting.

HHJ Tayler endorsed the tribunal's reasoning on each exclusion. Applying HSBC Asia Holdings BV v Gillespie [2011] ICR 192, he reiterated that whilst relevant evidence should generally be admitted in discrimination claims, courts must be prepared to exclude material that is insufficiently relevant and risks obscuring the essential issues. Critically, he observed that it is often claimants who suffer most when marginal evidence is admitted in bulk, as volume can dilute rather than illuminate genuine complaints. The tribunal had not adopted an all-or-nothing approach: it had permitted evidence concerning a "black face" photograph from the Zug office, demonstrating a calibrated exercise of discretion.

Both grounds of appeal were dismissed.