Duffy v George

An employment tribunal is not required to dismiss a claim merely because the claimant does not attend and cannot be cross-examined. The Employment Tribunal Rules of Procedure permit the tribunal to receive written, hearsay or second-hand evidence and to determine what weight it should receive. The governing consideration is fairness. The tribunal must consider the information available to it, including the reasons for non-attendance, and may proceed where that is the just course. The absence of oath evidence and cross-examination affects weight rather than admissibility. Fairness may require protection against excessive restriction of cross-examination, but parties have no entitlement to unlimited questioning.

Mr Duffy appealed against an Employment Tribunal judgment which upheld, in limited respects, a sexual-harassment claim brought by Miss George. Miss George did not attend the hearing because of anxiety and fear, but had provided a detailed witness statement. The tribunal heard Mr Duffy’s evidence and relied on Miss George’s evidence concerning text messages and a vibrator, while rejecting other allegations that could not fairly be tested. The appeal was confined to whether the tribunal was legally entitled to make findings against Mr Duffy in Miss George’s absence and without cross-examination.

1. Appeal dismissed. The issue was whether the tribunal was bound to dismiss the claim because Miss George did not attend and was unavailable for cross-examination. It was not.
2. Rule 14(2) and (3) gave the tribunal broad powers to avoid formal rules of evidence, make appropriate enquiries and conduct the hearing in the manner most suitable for clarification of the issues and the just handling of the proceedings. Those powers permitted reliance on written, hearsay or second-hand evidence where the maker was unavailable for cross-examination.
3. The absence of oath evidence and cross-examination was relevant to the weight of the evidence, rather than its admissibility. The touchstone was fairness. The tribunal had to balance fairness to both parties while pursuing the overriding objective of dealing with cases justly.
4. Rule 27(5) did not require dismissal where a party failed to attend. Rule 27(6) required the tribunal first to consider the information available from the parties. That included the reasons for Miss George’s non-attendance, her detailed statement and the apparent admissions concerning the text messages and gift. The tribunal was entitled to proceed where doing so was the just course.
5. McBride v British Railways Board and others [1972] ITR 84 illustrated the limits of fairness where a party was prevented from cross-examining a witness who had given evidence on a material issue. The present case involved the different question whether reliance could be placed on evidence from a witness who did not attend. Excessive restriction of cross-examination could cause unfairness, but there was no entitlement to unlimited cross-examination.
6. It was unnecessary and impossible on the material available to review the tribunal’s substantive findings or its exercise of discretion. Proceeding in the circumstances was not necessarily an error of law.

• Employment Appeal Tribunal: appeal dismissed.
• Employment Tribunal, Norwich: by judgment dated 10 March 2011, the tribunal upheld limited sexual-harassment complaints against Mr Duffy, rejected other allegations in the claimant’s absence and made no award.