Obasa v Buckinghamshire County Council

A tribunal may strike out a party’s claim for conduct connected with the proceedings where that conduct makes a fair trial impossible and no lesser proportionate measure will secure one. The remedy is draconian and requires consideration of alternatives, but the tribunal need not enumerate and reject every conceivable alternative.

Where threats are intended to influence a key witness’s evidence, measures regulating the hearing, such as screens or filtered questions, may not cure the intimidation or the threat of consequences outside the tribunal. An appellate court will not interfere where the tribunal applied the correct approach and reached a permissible discretionary conclusion.

The claimant’s remaining claims for race and disability discrimination and detriment were struck out by the Employment Tribunal. The order followed threatening and offensive emails sent by the claimant to the respondent’s principal witness, her former manager.

The Employment Judge decided the strike-out application from witness statements and submissions, recording that both parties had agreed not to give evidence because related criminal proceedings were pending. On appeal, the claimant disputed that agreement and contended that strike-out was excessive because alternatives could have protected the witness.

The Employment Appeal Tribunal heard evidence from the claimant and the respondent’s solicitor on the disputed agreement. The central issues were whether that agreement existed and whether the Employment Judge’s discretionary strike-out decision was legally erroneous or perverse.

1. Appeal dismissed. The Employment Judge correctly struck out the claims.

2. The EAT found, after hearing and assessing the claimant and the respondent’s solicitor, that the claimant had agreed that neither she nor the witness would give oral evidence on the strike-out application. The Employment Judge was therefore entitled to proceed on the witness statements and submissions.

3. The Employment Judge correctly applied the three questions drawn from Bolch v Chipman [2004] IRLR 140: whether the conduct concerned the manner of the proceedings; whether it made a fair trial impossible; and whether a proportionate response short of barring the wrongdoing party was available.

4. The threatening emails and the claimant’s conduct at the hearing entitled the Employment Judge to find that the respondent’s key witness was intimidated and that her ability to give evidence would be affected. The intimidation was directed not merely to the witness’s comfort in the hearing, but to inducing her not to give adverse evidence. Screens, filtered questions, or excluding the claimant from part of the hearing would not address threats to the witness and her family outside the tribunal.

5. Although strike-out is draconian, the Employment Judge had considered whether a lesser measure could secure a fair trial. She was not required to list every possible alternative. Her conclusion that no lesser measure would suffice was within the broad scope of her discretion and was not perverse.

6. The EAT respectfully agreed with the observations in Force One Utilities Ltd v Hatfield [2009] IRLR 45 concerning serious witness intimidation, but did not purport to give wider guidance because it was unnecessary to decide the appeal.

• Employment Appeal Tribunal: Appeal dismissed. The EAT upheld the Reading Employment Tribunal’s strike-out order.
• Employment Tribunal: Employment Judge Hill at Reading struck out the claimant’s remaining discrimination and detriment claims in reasons sent on 21 February 2011.
• Employment Appeal Tribunal procedure: The appeal was initially rejected at the sift stage. An oral hearing under rule 3(10) of the Employment Appeal Tribunal Rules allowed it to proceed to a full hearing.