Duffy v George

An Employment Tribunal may, with procedural adjustments securing a fair hearing, determine a claim using evidence from a party who does not attend or cannot be cross-examined. Absence of cross-examination does not automatically require dismissal, but particular care is required where credibility is central. Where an accuser fears attending, the tribunal should hold a pre-hearing review, assess the basis of the fear, and consider separate hearings, protective arrangements, or questions put through the tribunal. The opposing party must have a fair opportunity to make representations. Written evidence may be admitted and preferred, provided its reliability is carefully assessed and the decision is properly reasoned. Appellate interference with case-management discretion requires legal error or a plainly wrong exercise.

Michael Duffy appealed from an Employment Tribunal decision in Susannah George’s sex-harassment claim. The claimant did not attend the hearing after asking not to be required to do so, while the appellant attended and wished to cross-examine her. The ET dismissed allegations that were not admitted but upheld two admitted incidents as harassment. The Employment Appeal Tribunal dismissed the appeal, holding that the ET was not necessarily required to dismiss a claim where the claimant was absent and that the procedure was not shown to be unfair: UKEAT/0517/11/KN. The Court of Appeal considered whether the ET had adequately managed the competing fairness concerns before relying on written evidence without cross-examination.

The appeal was allowed and the matter remitted for rehearing by a differently constituted Employment Tribunal in accordance with the law stated by the Court of Appeal. Mummery LJ gave the leading judgment, with which Patten LJ agreed. Pitchford LJ agreed with the result and gave supplementary reasons.

1. Mummery LJ held that the appellant’s submission was put too high. There may be circumstances in which an ET can decide a claim against a party who has not had the opportunity to cross-examine the opposing party, provided procedural adjustments secure a fair hearing. The absence of cross-examination does not automatically require dismissal.
2. The ET nevertheless made a procedural error by failing first to hold a pre-trial review. It should have assessed whether the claimant had genuine grounds for fearing attendance, considered whether an inter partes hearing should be dispensed with, and explored separate hearings or questions put to each party through the tribunal.
3. The overriding objective in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 required justice, equal footing and fair handling of the proceedings. The ET’s broad case-management powers included control of the manner of the hearing, written questions, separate treatment of issues and arrangements for absent parties. The court applied the principle in McBride v British Railways Board [1972] ITR 84 that inability to cross-examine on a material issue may justify remission, particularly where credibility is central.
4. Pitchford LJ added that, where a claimant is genuinely fearful and unwilling to give oral evidence, rule 14(2) permitted written evidence to be received. After fair argument, the tribunal could prefer that evidence, but had to consider reliability factors and give proper reasons. Its weight remained a matter for the tribunal.
5. Appellate courts must respect first-instance procedural discretion where it is exercised judicially. Intervention is justified for an error of legal principle or where the exercise is plainly wrong.

1. Court of Appeal (Civil Division): Allowed the appeal and remitted the matter for rehearing before a differently constituted Employment Tribunal.
2. Employment Appeal Tribunal: Dismissed the appellant’s appeal and held that no question of law arose: UKEAT/0517/11/KN.
3. Employment Tribunal: Dismissed the unadmitted harassment allegations but upheld the claims concerning the admitted sexualised text messages and vibrator as sexual harassment.