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Do not discuss your evidence during breaks

Do not discuss your evidence during breaks

Postby atticus » Fri Apr 06, 2018 10:55 am

EAT case today, Chidzoy v BBC. This does not apply only to Employment Tribunal cases.


PRACTICE AND PROCEDURE - Striking-out/dismissal

Strike out of claim - unreasonable conduct of proceedings

During a short break in the course of giving evidence at the Full Merits Hearing of her claims, the Claimant participated in a conversation with a journalist, which included some discussion about the case and about a particular aspect of the Claimant's evidence given shortly before the break. Aspects of this were overheard by one of the Respondent's witnesses and by two members of its legal team, who brought the matter to the attention of the ET. Allowing the Claimant to give instructions to her legal representative and to thus provide an initial account of what had taken place, the ET then adjourned for a long weekend to enable the parties to provide statements about this matter. Upon the resumption of the hearing, the Respondent applied for the claim to be struck out due to the Claimant's unreasonable conduct of the proceedings. Concluding that the Claimant had indeed been party to a discussion about her evidence, in flagrant disregard of the warnings given by the ET on six separate occasions that she must not do so when still giving evidence, the ET 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 that there were none. It therefore struck out the Claimant's case. The Claimant appealed.

Held: dismissing the appeal

The ET had correctly addressed the four questions identified in Bolch v Chipman [2004] IRLR 140 EAT. Adopting an entirely fair process, it 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 ET had gone on to consider whether it could still conduct a fair trial of the Claimant's case but, having concluded that trust had broken down, had correctly concluded it was not. Asking itself whether it was proportionate to strike out the claim, the ET 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.

What is not said is whether the reporter with whom the claimant spoke was subject to any sanction. My understanding is that journalists are taught about contempt of court, and engaging in conversation with a witness who is in the course of giving evidence seems to me to be a very stupid thing to do.
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