Under the Employment Tribunal Rules of Procedure, a tribunal has the power to strike out a claim or response at any stage either on its own initiative, or following an application from another party for a number of prescribed reasons. The potential grounds for strike-out include cases of unreasonable conduct, and where it is no longer possible to have a fair hearing. Instances of strike out for one of the above reasons once a case reaches the tribunal are rare. However, in Chidzoy v. British Broadcasting Corporation ET/3400341/16 a claimant's claim was struck out by the tribunal on both these grounds.

The facts

Ms Chidzoy was a BBC journalist whose claim against her employer was listed for an 11-day tribunal hearing. The background of Ms Chidzoy's claim itself is not relevant here, save to say that it included a dispute over possible coverage of a story about the Dangerous Dogs Act, in the context of which a colleague had referred to Ms Chidzoy by email as "Sally Shitsu". Ms Chidzoy said this demeaned her on the grounds of her sex, but the BBC disagreed pointing out that Ms Chidzoy had said she would not object to having been called a terrier or a rottweiler.

Ms Chidzoy was sworn in and was cross examined by Counsel for the BBC over the course of two days. During breaks and overnight, Ms Chidzoy was reminded that she remained under oath and must not discuss her evidence with anyone.

On the third day, the tribunal adjourned for a comfort break, again reminding Ms Chidzoy that she should not discuss her evidence with anyone. Ms Chidzoy was, however, seen by Counsel for the BBC speaking to a journalist during the break. The word "rottweiler" was heard.

After the adjournment, the BBC's Counsel reported the incident to the Judge. Ms Chidzoy and her solicitor were unable to give a satisfactory explanation for what had occurred, and the BBC applied for the strike-out.

The decision

The employment tribunal heard evidence from all involved, and struck Ms Chidzoy's claim out in its entirety on the grounds that her conduct had been unreasonable, and that a fair trial was no longer possible. Most notably, the tribunal said that its trust in Ms Chidzoy and her solicitor was "irreparably damaged" by the incident, their failure to report it to the tribunal, and the evidence that they gave about it in response to the BBC's application. It was for this reason that the tribunal considered a fair trial was not possible. The tribunal considered whether the case should be heard afresh by a different tribunal, but found that this would be disproportionate given that Ms Chidzoy's evidence had almost been completed. The tribunal was also of the view that a new tribunal would be aware of the reasons for the case being re-heard, and so also be unable to place its trust in Ms Chidzoy or her solicitor.

The tribunal's decision here is unusual. The EAT's decision in Sud v. London Borough of Hounslow [2015] UKEAT 0156/14 provides previous authority for strike-out on the grounds that it is no longer possible to have a fair hearing, because a tribunal has lost trust in the claimant. However, it must surely be a regular occurrence that, for one reason or another, during the course of proceedings a tribunal decides that it does not particularly trust one party's version of events. Perhaps the key factor in Chidzoy was that the tribunal's trust in Ms Chidzoy's solicitor had been destroyed as well as its trust in the claimant herself. This case is interesting, and serves as a warning to all witnesses to take their oaths, and the tribunal's instruction not to discuss their evidence during an adjournment, seriously.