Chidzoy v British Broadcasting Corporation

An Employment Tribunal may strike out a claim for unreasonable conduct only after addressing whether the proceedings have been conducted unreasonably, whether a fair hearing remains possible, and whether a lesser, proportionate measure would suffice. Strike-out remains a draconian remedy.

A witness who is still giving evidence may reasonably be instructed not to discuss the case during adjournments. Breach of that instruction can amount to unreasonable conduct even if it is unnecessary to decide whether the instruction was a formal order. Where a Tribunal fairly finds that discussion of recent evidence has irreparably destroyed its trust in the witness, and no alternative can cure the resulting unfairness, striking out the claim is permissible.

The Claimant brought claims of whistleblowing, sex discrimination, victimisation and harassment against her former employer. During a break in her cross-examination at the full merits hearing, and after repeated warnings not to discuss the case while giving evidence, she spoke with a journalist. The conversation included reference to an issue raised in her evidence immediately before the break.

The Cambridge Employment Tribunal found that the Claimant had discussed her case and evidence, that this was unreasonable conduct, and that its trust in her had irreparably broken down. It struck out the whole claim. The Claimant appealed, challenging the procedure, the finding of unreasonable conduct, the conclusion that a fair hearing was impossible, and the proportionality of strike-out.

1. Appeal dismissed. The Employment Tribunal correctly applied the four-stage approach in Bolch v Chipman [2004] IRLR 140. It made a permissible finding that the Claimant had conducted the proceedings unreasonably.

2. The ordinary warning to a witness not to discuss evidence while still under oath protects the integrity of the evidence and the fairness of the hearing. It was unnecessary to decide whether the warning was a formal order. The instruction, repeated six times, was clear, reasonable and proportionate. It did not interfere with press reporting and was compatible with Articles 6 and 10.2 of the European Convention on Human Rights.

3. The Tribunal was entitled, under Rule 41, to determine the procedural course fairly and proportionately. The parties had supplied accounts of the conversation. The Tribunal was not obliged to hear oral evidence before rejecting the Claimant's account. It could properly find that she had participated in discussion of her evidence, including evidence given shortly before the adjournment.

4. The conduct was serious although it occurred towards the end of cross-examination. The Tribunal was entitled to treat the subject matter as material, to take account of the Claimant's failure to report the incident, and to consider the differing accounts provided on her behalf. Those matters permissibly led it to conclude that trust in her veracity was irreparably lost and that it could no longer fairly try the claim.

5. The Tribunal then properly considered proportionality and alternatives, including a differently constituted Tribunal and partial strike-out. Neither would cure the continuing problem concerning the Claimant's credit. Full strike-out was therefore an available and proportionate response.

• Employment Appeal Tribunal: Dismissed the Claimant's appeal and upheld the strike-out.
• Cambridge Employment Tribunal: On 23 February 2017, struck out the Claimant's claims in their entirety under Rules 37(1)(b) and 37(1)(e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.