Mehta v Child Support Agency

Fairness does not require every witness statement to be read aloud in every employment tribunal hearing. The tribunal may take statements as read where that course is procedurally efficient and the parties agree to it. An employment judge dealing with an unrepresented party must take care to ensure that the proposed course is understood and that the party has a genuine choice. Relevant considerations may include the clarity and importance of the statement, the need for clarification or amplification, the technical nature of the evidence, the witness’s need to settle before hostile cross-examination, and any perception of unequal treatment. Statements may be read in whole or in part, or the witness may be taken through selected passages. The decision remains a matter for the tribunal’s case-management powers.

The claimant appealed against the dismissal by an Employment Tribunal sitting at London South of claims for unfair dismissal and sums due. The appeal was confined to alleged procedural unfairness. The claimant contended that it was unfair for her witness statement to be taken as read when two of the respondent’s witnesses had been allowed to read their statements aloud.

At the end of the first hearing day, the Employment Judge proposed that the remaining statements should be read overnight because of time pressures. The claimant indicated that she had no objection. Her statement was subsequently taken as read, although she gave extensive oral evidence and made closing submissions. The central issue was whether the tribunal had acted unfairly by adopting that procedure.

The appeal was dismissed. The Employment Tribunal was entitled to take the claimant’s witness statement as read.

1. Consent and informed choice. An employment judge dealing with a litigant in person has a responsibility to ensure that the proposed procedure is understood and that the party has a genuine choice. On the evidence, the Judge invited agreement, explained the proposal, and the claimant expressly stated that she had no objection. The claimant was therefore responsible for the course agreed to, making proper allowance for her unrepresented status.
2. No universal requirement to read statements aloud. Fairness does not require every witness statement to be read aloud in full, or at all. Reading a document aloud may achieve nothing where the tribunal can read it more efficiently outside the hearing, and may conflict with the overriding objective by wasting time.
3. Relevant circumstances. In an appropriate case, there may be good reasons to read all or part of a statement aloud. These include enabling an unrepresented party to feel that their case has been heard, clarifying a confused or inadequate statement, dealing with technical evidence, and giving a witness an opportunity to settle before hostile cross-examination. These are considerations, not mandatory requirements.
4. Flexible case management. The procedure need not be all or nothing. A tribunal may read selected passages, walk a witness through the statement, or summarise an unrepresented party’s statement to confirm that it has been understood. The choice is for the tribunal in the exercise of its case-management powers.
5. Different treatment. Statements from different parties need not always be handled identically. However, where different treatment is adopted, particularly involving an unrepresented party, the tribunal should explain the reasons fully and address any perception of unfairness. The tribunal had provided the claimant with other substantial opportunities to present and clarify her case.

The Tribunal declined to decide whether the procedure would have been unfair had it been imposed without consent. It also made observations concerning the public availability of statements taken as read, but did not determine that issue.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s dismissal of the claimant’s claims.
• Employment Tribunal, London South: dismissed claims of unfair dismissal and for sums due.