|At the Tribunal|
|On 9 February 2018|
HER HONOUR JUDGE EADY QC
Transcript of Proceedings
|For the Appellant||MS ALTHEA BROWN
Direct Public Access
|For the Respondent||MR SEAN JONES
(One of Her Majesty's Counsel)
MS SOPHIE BELGROVE
British Broadcasting Corporation
Floor 2 Area B6
201 Wood Lane
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  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.
HER HONOUR JUDGE EADY QC
The Relevant background and the ET's Decision and Reasoning
"7. On resumption of the Hearing, Mr Jackson on behalf of the Claimant stated that the Claimant had not been discussing her evidence. He told us at the time (as per the Judge's note crossed checked [sic] with the Members' notes and the record provided by Miss Belgrove's instructing solicitor) that:
1) Mr Jackson had offered to speak to the relevant journalist.
2) That they went together towards a room where the Claimant was sitting on her own and therefore did not enter that room but spoke outside the room (or in another room).
3) Mr Jackson then went into the room where the Claimant was to retrieve copies of some witness statements.
4) Subsequently Mr Jackson and the Claimant and the journalist were all together in the open waiting area.
5) Mr Jackson then left to go to the lavatory leaving the Claimant and the journalist together.
8. Mr Jackson said that he had not heard anything said that was "untoward".
"18. According to the Respondent's submissions and the reports of events provided by her instructing solicitor and witnesses, it was her instructing solicitor, Ms Janjua who first reported to Miss Belgrove that she had seen the Claimant with another person in discussion and specifically heard the Claimant use the word "Rottweiler". She immediately reported this to Miss Belgrove.
20. Acting on what Ms Janjua told her … Ms Belgrove went into the area where she had been told the Claimant was in discussion. En route she met Mr Silk who reported that the Claimant was in discussion with a third party and that he had heard discussion about "dangerous dogs". Miss Belgrove then approached the Claimant and the journalist, herself heard use of the word "Rottweiler" (but could not say who said it) and intervened in the discussion. As it broke up either the Claimant or the Journalist (Miss Belgrove could not say which) was heard by her to say "sorry, I have known her for ages"."
"21. According to Mr Jackson's statement produced today the events were these. He, the Claimant and the Journalist briefly stood as a group of three in the lobby area in discussion. Mr Jackson then went to the bathroom saying he would return and provide the information the Journalist needed. On return, he said, the Claimant had gone. He invited the Journalist into a room and she said she could not go in because the Claimant was there and so Mr Jackson and the Journalist went to an adjacent room to discuss the case and he provide [sic] for her sight of some witness statements.
22. The Claimant's report of events was that she was approached by the Journalist as she was leaving the Tribunal room for the adjournment and that they may have shaken hands. Everyone left the Tribunal room and the Claimant says that she walked over to the reception desk where she stood waiting for Mr Jackson because he would normally take her into the room where she would sit during an adjournment but he said he would be "back in a minute" and so the Claimant decided to wait for him. She said that she engaged pleasantries with the Journalist about her working for the Eastern Daily Press and staff shortages. The Claimant then says that the Journalist proffered the information that she had once been called a "Rottweiler or Terrier" in relation to her work and the Claimant said it was at this point that Miss Belgrove intervened.
23. A written version of events was provided from Ms Gliss, the Journalist in question. She said that the Claimant had approached her and said hello and shook her hand. She said that the Claimant and she were chatting and that she herself volunteered that she had been called a "Rottweiler" in the past at which point the conversation was stopped by Miss Belgrove."
"24. The use of the word "Rottweiler" is relevant because the most recent part of the Claimant's cross examination before the adjournment related to an email circulated within the BBC (but not to her) in relation to the possible coverage of a story regarding the Dangerous Dogs Act where it was suggested that the Claimant could be the relevant reporter but referred to her as "Sally Shitsu". The Claimant had objected to this terminology which she said was demeaning on the grounds of her gender (by calling her, in terms, a dog) and abusive generally by implication that she was a "shit journalist". The Respondent's position was, inter alia, that the Claimant herself had said that she would not have objected if she had been called "Sally Terrier" or "Sally Rottweiler". The Claimant denied this and said that any reference to Rottweiler and Terrier during the course of the grievance hearing when this exchange was said to have taken place related to the occasional use of those words in a complementary [sic] way about journalists who would not give up on a story. The words themselves were in debate during cross examination of the Claimant by Miss Belgrove."
"28. There is some divergence of evidence between the information given to the Tribunal by Mr Jackson in the immediate aftermath of the events of 9th February as we have recorded them above and the version of events now reported by him, the Claimant and Miss Gliss.
29. In particular, it is not clear whether the Journalist and Mr Jackson spoke separately before the discussion with the Claimant in the lobby or not."
"33. The discussion between the Claimant and the Journalist was either facilitated by Mr Jackson (he did not ensure the Claimant returned to her room but engaged, on his own report, in a three way discussion with the Claimant and the Journalist) or permitted by passive conduct. He was engaged in a three way discussion with the Journalist and the Claimant, absented himself to go to the lavatory but did not ensure that the Claimant also terminated the conversation and went into her room.
34. We unanimously take the view that it stretches the bounds of credulity to believe that in those circumstances (in particular where the third party was a Journalist who was asking for information about the case and who on Mr Jackson's own evidence was going to be given information when he returned) would not have asked questions about the Hearing. Miss Belgrove, Ms Janjua and the Journalist all confirm the use of the word "Rottweiler" and Mr Silk referred to the Claimant speaking about "dangerous dogs". Even if, as is stated by the Claimant and the Journalist it was the latter who initiated the use of the word "Rottweiler", that clearly points to discussion as regards the questions put in cross examination to the Claimant that very morning. There is no mention of that word in the Claimant's own evidence as set out in her witness statement.
35. We therefore unanimously find as a fact that the Claimant was engaged in discussion about the case and her evidence with Ms Gliss. It is beyond our understanding as to why the Claimant was left by Mr Jackson alone with the Journalist during an adjournment and equally why she was allowed to be part of a three way discussion with the Journalist and Mr Jackson at what was a very late stage of her evidence with the strictures of the Tribunal given, as we have said, no less than six times ringing in their ears."
"39. … We are concerned, however, that in the immediate aftermath of the incident on 9th February, Mr Jackson first told us that he had heard no inappropriate discussion (but then confirmed that he had left the Claimant and the Journalist alone and could not hear what they were saying) and further that his record in particular of the sequence of events of the day has altered substantially from his immediate contemporaneous recall to the events as they are now described in writing."
"40. The fact of the discussion and its contents, compounded by the way it was allowed to take place, the clear finding that the Claimant and the Journalist were engaged in a discussion about the case and the Claimant's evidence part way through her cross examination by specific reference to matters raised in cross examination that morning have led us to conclude, however, that the trust which the Tribunal should have in the Claimant has been irreparably damaged. That is reinforced by the doubtful veracity of the report of events which we have had from the Claimant's representative which has altered significantly between Thursday and today (Monday).
41. Miss Belgrove draws to our attention the fact that after the incident had taken place, it was not the Claimant or her representative which sought to bring the matter to the attention of the Tribunal and explain it but rather it was left to the Respondent to raise it. The Claimant's representative should have realised that allowing the Claimant to speak to a Journalist alone at the relevant time was at least foolhardy and some explanation, once the Respondent was aware of the discussion and had intervened in it, was clearly due.
42. All of this has led us to the conclusion that we as a Tribunal do not have the necessary trust in the Claimant who should have well understood that a discussion about her evidence and any aspect of the case, during an adjournment whilst she was still under oath and undergoing cross examination should not have taken place. We have considered carefully whether this is a matter which we can, in terms, overlook but we cannot. Unanimously we consider that a fair trial is no longer possible. The flagrant disregard of clear and repeated instructions from the Tribunal not to discuss the case for her evidence given to the Claimant on a number of occasions has been disregarded. Information passed between a third party and a witness during that person's evidence runs the substantial risk of corrupting the evidence of the person concerned and that is why clear warnings are given. Here there was clear discussion about a matter which had been raised during cross examination that very morning."
(1) She complains that the ET erred in its conclusion that she had engaged in unreasonable conduct. It had failed to consider whether any information had passed between the Claimant and Ms Gliss that was capable of corrupting the Claimant's evidence, or to assess whether there was a substantial risk that the Claimant's evidence may have been so tainted or corrupted. The process adopted by the ET in dealing with the application to strike out on this basis was also procedurally inadequate and unfair: to the extent that the ET had found that the Claimant had engaged in unreasonable conduct by communicating something to Ms Gliss such as would be capable of corrupting her evidence, it ought to have first heard oral evidence before reaching any such determination.
(2) Alternatively, the ET had erred in its conclusion that a fair trial was no longer possible on the basis that trust had been "irreparably damaged".
(3) Yet further, the ET erred in concluding that a strike out was the appropriate sanction.
The Relevant Legal Principles
"37. Striking out
(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 -
(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;
(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)."
"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."
"2. Overriding objective
The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable -
(a) ensuring that the parties are on an equal footing;
(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;
(c) avoiding unnecessary formality and seeking flexibility in the proceedings;
(d) avoiding delay, so far as compatible with proper consideration of the issues; and
(e) saving expense.
A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal."
(1) There must first be a conclusion by the ET 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 ET 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).
See also observations to similar effect made by the EAT (Simler P presiding) in Arriva London North Ltd v Maseya UKEAT/0096/16 (12 July 2016, unreported).
The Claimant's Case
The Respondent's Case
The Claimant in Reply
Discussion and Conclusions