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.
The Claimant was a BBC television reporter with 29 years’ service. She brought claims for whistleblowing, sex discrimination, victimisation and harassment against the BBC, which were listed for an 11 day hearing. The Claimant was sworn in and cross examined by counsel for the BBC over the course of 2 days. During breaks and overnight she was reminded that she remained under oath and must not discuss her evidence with anyone. On the third day of her cross-examination she was questioned about an email circulated within the BBC which discussed a story about the Dangerous Dogs Act and referred to her as “Sally Shitsu”. The Claimant objected to the terminology used as she found it demeaning and generally abusive. One of the BBC’s arguments in response was to suggest that the Claimant herself had said that she would not have objected if she had been called “Sally Terrier” or “Sally Rottweiler”.
When the tribunal adjourned for a comfort break the Claimant was warned that she remained under oath and was not to discuss her evidence or any aspect of the case with any person during the adjournment.
During the break the Claimant was seen by counsel for the BBC speaking to a journalist from the Eastern Daily Press. The words “dangerous dogs” and “Rottweiler” were heard.
After the break, the BBC’s counsel reported the incident to the Judge. The Claimant and her solicitor were unable to give a satisfactory explanation for what had occurred. The Claimant’s solicitor maintained that the Claimant had not discussed her evidence with the journalist. The BBC applied for a strike out on the grounds of unreasonable conduct under rule 37(1) of the Tribunal rules.
The ET had written evidence from all involved and struck out the Claimant’s claim in its entirety on the grounds that it found as a matter of fact that the Claimant engaged in discussion with the journalist about the case and her evidence.
It observed that the Claimant had been given clear and unequivocal instructions at each adjournment not to discuss her evidence or any aspect of the case with anyone. The ET concluded that the Claimant’s disregard for this direction constituted unreasonable conduct.
The ET said that its trust in the Claimant and her solicitor was “irreparably damaged” by the incident, their failure to report it to the ET and the evidence that they gave about it in response to the BBC’s application.
The ET considered whether the case should be heard afresh by another tribunal, but found that this would be disproportionate given the Claimant’s evidence had almost been completed. A new tribunal would know the reasons for the case being re-heard, and so would also be unable to place its trust in the Claimant or her solicitor. Therefore a fair trial was no longer possible.
The Claimant appealed to the EAT and the EAT dismissed her appeal.
Her Honour Judge Eady QC rejected the Claimant’s argument that the ET’s procedure at the resumed hearing was flawed as oral evidence was not heard. There were limited differences between the evidence provided by the various witnesses and so cross examination would have served little purpose. Furthermore the Claimant’s own case was she was party to a discussion that included some reference to her evidence.
The Judge held that the ET had adopted a fair process which entitled it to make the findings it did. The ET had permissibly concluded that the Claimant had unreasonably conducted the proceedings.
As to the proportionality of striking out the claim, the ET had properly considered whether there were an alternative, such as whether the case should be heard by a different tribunal or whether only parts of the claim could be struck out. The ET was entitled to conclude that the Claimant’s veracity would also be a problem for another tribunal and would continue to be an issue in the proceedings.
What does this mean for you or your business?
- It is important for witnesses to heed the warnings that are given by the ET and not to discuss evidence or the case whilst under oath. This is particularly important where cases are heard over several days.
- You should be aware that the ET is able to strike out a claim or part of a claim at any time during proceedings either by its own volition or based on an application by one of the parties to the proceedings.
What do you need to be doing now?
Remind witnesses to take their oaths and tribunal’s instructions not to discuss their evidence during an adjournment seriously.