Rules of procedure and evidence in the Employment Tribunal
In a recent case decided by the Employment Appeal Tribunal they considered the rules of evidence and an employee’s conduct whilst under oath in the Employment Tribunal.
When giving evidence in the Employment Tribunal a witness is required to swear an oath on the bible or give an affirmation to tell the truth. There are often times when there needs to be a break part way through the evidence and during this time the witness remains ‘under oath’.
In these circumstances witnesses are reminded by the Employment Tribunal Judge that they remain under oath and that as a result they are to refrain from discussing the case or their evidence with anyone, including their legal representative.
Often times witnesses are urged to avoid fellow witnesses or to eat lunch alone for example so as to avoid the temptation to discuss the case, and avoid any accusation that they may have been doing so.
The Employment Tribunal Rules of Procedure 2013 govern the Employment Tribunal process and Rule 37 deals with striking out of an Employment Tribunal claim. It states as follows:
“(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds:
(a) that it is scandalous or vexatious or has no reasonable prospect of success;
(b) that the manner in which the proceedings have been conducted by or on behalf of the claimantor the respondent (as the case may be) has been scandalous, unreasonable or vexatious;
(c) for non-compliance with any of these Rules or with an order of the Tribunal;
(d) that it has not been actively pursued;
(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).
(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.
(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21.”
Rule 41 of the Rules state that:
“The Tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The following rules do not restrict that general power. The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.”
Ms Chidzoy was employed by the BBC as a journalist and home-affairs correspondence for approximately 29 years. Ms Chidzoy made a claim to the Employment Tribunal for whistleblowing, sex discrimination, victimisation and harassment.
Her case was listed to be dealt with by the Cambridge Employment Tribunal in an 11-day hearing.
Ms Chidzoy gave evidence over 3 days and during each break in her evidence she was reminded by the Employment Tribunal that she must not discuss her evidence or any aspect of her case with anyone during the adjournments.
During a break in giving evidence on day 4 of the trial Ms Chidzoy was overheard by witnesses for the BBC and their legal team discussing her case, and aspects of her evidence that she had just given, with a journalist from a local paper, the Eastern Daily Press.
The issue was brought to the attention of the Employment Tribunal who adjourned for statements to be prepared on the matter. When the parties returned to the Employment Tribunal the BBC applied for Ms Chidzoy’s case to be struck out due to her ‘unreasonable conduct of the proceedings’.
The Employment Tribunal noted that Ms Chidzoy had been given warnings on 6 separate occasions that she must not discuss the evidence or case whilst she was still in the process of giving evidence and that she had acted in ‘flagrant disregard’ for the warnings and therefore the Employment Tribunal had lost trust in her and could not fairly hear her case. As a result of there being no alternative they decided to strike out her claims.
Ms Chidzoy appealed against the decision.
The Employment Appeal Tribunal did not agree with Ms Chidzoy and concluded that the Employment Tribunal had been right to strike out her claim.
The Employment Appeal Tribunal had considered previous case law on this matter deciding that:
“where the Employment Tribunal is considering the possibility of striking out a claim or response due to the way in which the proceedings have been conducted, there were four matters it would need to address:
(1) There must first be a conclusion by the Employment Tribunal not simply that a party has behaved unreasonably but that the proceedings have been conducted unreasonably by her or on her behalf.
(2) Assuming there is such a finding, in ordinary circumstances the Employment Tribunal will still need to go on to consider whether a fair trial is still possible, albeit there can be circumstances in which a finding of unreasonable conduct can lead straight to a Debarring Order (see De Keyser Ltd v Wilson  IRLR 324 EAT (Lindsay P presiding)). That might be, for example where there has been “wilful, deliberate or contumelious disobedience” of an ET Order, otherwise it might be where the conduct in issue is so serious it would be an affront to the ET to permit the party in question to continue to prosecute their case (see Arrow Nominees Inc v Blackledge  EWCA Civ 200).
(3) Even if a fair trial is not considered possible, the ET must still consider what remedy is appropriate and whether a lesser remedy might be more proportionate.
(4) And even if it determines that a Debarring Order is the appropriate response, the ET should consider the consequences of that Order (allowing that, for example, where a response has been struck out at the liability stage, it might still be appropriate to allow the Respondent to participate in any remedy hearing).”
In deciding to strike out the claim the Employment Tribunal had:
1) adopted a fair process;
2) been entitled to make the findings that it did;
3) been permissible to consider that Ms Chidzoy had unreasonably conducted the proceedings;
4) correctly considered if they could still conduct a fair trial of her case;
5) had concluded that they could not fairly hear her case; and
6) it had been proportionate for the Employment Tribunal to strike out after considering all other options.
Points to note
Whilst Employment Tribunals are often seen as being more relaxed and informal than the Courts it is still important to consider that certain rules of evidence and conduct still apply.
I am often asked by employee clients if they should contact the media during their case, many believing that it will in some way assist them. My advice is always to steer clear of using media coverage as leverage or to assist in the case.
Although there is nothing, in principle, to prevent an employee from discussing the case with a journalist during, before or after the proceedings, there is clearly an issue of doing so during the giving of evidence under oath.
Action to take
1) Witnesses in an Employment Tribunal case should be given a warning that if they fail to adhere to the instructions given by the Tribunal the case or defence could be struck out;
2) If you are giving evidence and there is a break you should avoid putting yourself in a situation that could lead to accusations that you are discussing the case.;
3) If in doubt seek advice.
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