Evidence Discussed at Adjournment

Welcome back to your weekly case law update. Last week we covered three cases whose issues included constructive dismissal, the national minimum wage and disability discrimination. This week, we have a rather rare case on strike-out applications.

Earlier this year, we mentioned that Employment Tribunal decisions were now available online. We believe online judgments offer solicitors and others a more indicative insight into case law but also pose a reputational risk to employers.

This case deals with the former. Under the Employment Tribunal Rules of Procedure, the ET has the authority to strike out a claim on its own initiative or following an application from either party. The grounds for strike-out applications include:

1. Claims that are scandalous or vexatious or has no reasonable prospect of success

2. Parties non-compliance with ET Orders/Rules

3. Claims that have not been actively pursued

4. Cases of unreasonable conduct

5. Cases where it is no longer possible to have a fair hearing

Strike-outs for reasons 1-3 are not that rare but are not common, especially before the hearing. However, strike-outs for reasons 4&5 – particularly once the hearing has started – are rare, hence why this non-binding ET case has made the weekly update.

During a hearing, if a witness is giving evidence and being cross examined, they mustn’t discuss that evidence or the case in general with anyone. This includes their own representatives and fellow witnesses.

The questions in this case is:

Can a case be struck out if a witness being cross-examined discusses their evidence during an adjournment?

Can discussing evidence outside of an ET hearing amount to unreasonable conduct and prevent a fair hearing?

Ms Chidzoy, the Claimant, was a journalist for the BBC, the Respondent. The Claimant had a disagreement with a colleague about coverage of a story relating to the Dangerous Dogs Act. Her colleague referred to the Claimant as ‘Sally Shitsu’, which the Claimant took to be sex discrimination.

She began a Tribunal Claim and it was listed for an 11 day hearing – most discrimination claims require lengthy hearings. The Claimant was sworn in to give evidence and was cross examined for two days. During each break – whether rest, lunch or overnight – she was reminded not to discuss her evidence with anyone by the Employment Judge as she was still under oath.

On the third day of cross examination, there was a rest break and the Claimant was again reminded not to discuss her evidence with anyone outside the Hearing. During the break, the Respondent’s barrister saw the Claimant in conversation with a reporter and overheard the word Rottweiler being used. (This firm has had experience of this barrister and it may well have been that the term Rottweiller was used about the barrister.)

After the break the Respondent’s barrister reported the incident to the Employment Judge. The Claimant, nor her representatives, could provide a satisfactory explanation so the Respondent applied for a strike-out citing unreasonable conduct and the impossibility to have a fair hearing.

The ET struck-out the case, it held that the conduct of the Claimant and her representatives had damaged the trust of the Judge and panel members , making it unfair to continue with the hearing. This conduct was also held to be unreasonable. The ET held a re-hearing by fresh ET was impossible as the new ET would be aware of the Claimant’s conduct.

The takeaway point:

To both questions, yes, witnesses should never discuss evidence whilst still under oath. This is a key issue in any case and witnesses on either side of litigation should ensure they uphold the rules when giving evidence.

In cases such as this it is common for parties whose conduct is unreasonable to have costs awarded against them as well.