Strike out of claim for discussions under oath upheld by EAT

Cases

The Employment Appeal Tribunal has upheld the Employment Tribunal’s decision to strike out a claim because the Claimant had discussed her evidence with a journalist during an adjournment: see Chidzoy v BBC, UKEAT/0097/17/BA.

During a break in the course of her cross-examination, the Claimant had a conversation with a journalist regarding the case and in respect of a particular aspect of the Claimant’s evidence given shortly before the break. Parts of the conversation were overheard separately by one of the Respondent’s witnesses, by the Respondent’s solicitor and by the Respondent’s counsel. The Respondent brought the matter to the attention of the Employment Tribunal. The Claimant, through her legal representative, gave an initial account of events. The hearing was then adjourned.

At the resumed hearing, the Respondent applied for the claim to be struck out because of the Claimant’s unreasonable conduct of the proceedings. The Claimant’s representative provided an account of events which the Employment Tribunal found to be inconsistent with his initial account. Concluding that the Claimant had been party to a discussion about her evidence, in flagrant disregard of warnings given by the Employment Tribunal on six separate occasions that the Claimant must not do so when giving evidence, the Employment Tribunal concluded that it had irretrievably lost trust in the Claimant and could no longer fairly hear her case. It considered whether there were any alternatives to striking out the claim but concluded there were none. It therefore struck out the Claimant’s case. The Claimant appealed.

The Employment Appeal Tribunal dismissed the appeal. Adopting an entirely fair process, the Employment Tribunal had been entitled to make the findings it did as to what had taken place and had permissibly concluded that the Claimant had thereby unreasonably conducted the proceedings. The Employment Tribunal had gone on to consider whether or not it could still conduct a fair trial of the Claimant’s case but, having concluded that trust had broken down, had correctly concluded it could not. Asking itself whether it was proportionate to strike out the claim, the Employment Tribunal had considered whether there were any alternatives but had concluded there were none. In the circumstances, that was a conclusion that was open to it and the challenge to its decision to strike out the claim would be dismissed.

Sean Jones QC and Sophie Belgrove appeared for the BBC.