This case is one we covered at ET level previously. The reason for doing so is because procedural cases of this nature are very rare. Well, since covering the ET case, which isn’t binding on other cases, the case has been appealed to the EAT and we now have a binding precedent for future cases.
In any litigation, including Employment Tribunals, witness evidence can be a huge determining factor in the outcome of the case. As such witness evidence is treated very seriously. This is why witnesses take an oath to tell the truth and are reminded not discuss the case with anyone, including their solicitors, whilst they are under oath and giving evidence.
Chidzoy v British Broadcasting Corporation (BBC)
As such, the question this week is:
Can the Tribunal dismiss a claim if a witness discusses the claim with a third party whilst under oath?
The facts of the case are detailed in our previous coverage but in short:
Ms Chidzoy, the Claimant, brought a discrimination claim against the BBC, the Respondent, after being referred to as Sally Shitzu during coverage of a story about dangerous dogs.
The Claimant was cross examined as a witness for several days and there were comfort breaks, lunch breaks and overnight breaks. Over the duration of the Claimant’s evidence there were six breaks. At each break she was warned not to discuss the case with anyone as it could prejudice proceedings.
During the final break, the Respondent’s witnesses and representatives saw the Claimant talking to a journalist. The Claimant was overheard discussing dangerous dogs and used the term Rottweiler. When the Hearing resumed the Respondent raised this issue to the ET Judge and applied for the case to be struck out due to the Claimant’s unreasonable conduct and how it was no longer possible to have a fair hearing.
The ET allowed the application and struck out the claim. The Claimant appealed but the EAT rejected the appeal. It held the Claimant had ignored clear separate warnings not to discuss this case. This was unreasonable. The ET could no longer trust the Claimant which meant a fair hearing was impossible. Therefore, the ET had no alternative but to strike-out the claim and the decision to do so was fair.
The Takeaway Point:
Yes, discussing a case whilst under oath and giving evidence can result in a claim or defence being dismissed. In procedural issues, the ET will ask itself: is the conduct unreasonable, can a fair hearing still take place, is there any lesser sanction other than strike-out available. In this case the answer to all three was no.
Unreasonable conduct that results in the claim being dismissed is one of the few occasions in Employment Tribunal proceedings when a party could be ordered to pay the other side’s legal costs. As well as discussing the case whilst under oath, other examples of unreasonable conduct include posting about the case on social media, being physically abusive during proceedings, withholding evidence or being dishonest.
During the course of litigation, we always direct clients to our guide to tribunal proceedings which lays out what to expect (and what is expected of you) as a witness/someone attending the hearing. Other guides on employment law issues can be found in the resources section of our website.