E & O Laboratories v Miller

Rule 43 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 proceeds on the basis that a witness may be present at a hearing unless the Employment Tribunal excludes that witness in the interests of justice. Conduct compliant with that rule is not unreasonable under rule 37(1)(b) merely because it departs from Scottish practice.

A witness’s discussion of evidence may constitute unreasonable conduct where it defies a judicial admonition. In the absence of a direction, however, witnesses and a party’s representative cannot be treated as having acted unreasonably merely for discussing evidence. Strike-out under rule 37(1)(e) requires a proper basis for concluding that a fair hearing is no longer possible, such as evidence of perjured or partisan testimony.

The respondent, a farm manager, brought an Employment Tribunal claim for unpaid wages. During the hearing, the appellant’s representative and two proposed witnesses remained in the hearing room. The respondent overheard them discussing evidence during adjournments.

The Employment Judge struck out the appellant’s response, save for a minor matter. The strike-out was based principally on alleged unreasonable conduct and the conclusion that a fair hearing was no longer possible. The appellant appealed, contending that its witnesses’ presence and their discussions did not justify strike-out under rules 37(1)(b) or 37(1)(e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

1. Appeal allowed. The Employment Judge was not entitled to strike out the response. The matter was remitted to the Employment Tribunal before a different Employment Judge.

2. Rule 43 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 gives the Tribunal power to exclude a proposed witness where the interests of justice require it. It presupposes that a witness may otherwise be present. No party sought exclusion and the Tribunal made no order of its own motion. The presence of the appellant’s witnesses was therefore compliant with rule 43, and could not be characterised as unreasonable conduct for rule 37(1)(b), notwithstanding Scottish practice of keeping witnesses out of the hearing room.

3. Rule 37(1)(b) was capable of applying where a witness discussed evidence contrary to a judicial admonition. The primary responsibility for giving such an admonition lies with the judge, who is best placed to assess whether it is needed. Here, the representative had received no warning not to discuss her evidence while under oath. Neither she nor the other witnesses could reasonably infer that a warning given to the claimant extended to them. Their discussions were not unreasonable, and the representative was not at fault for failing to give a warning herself.

4. Rule 37(1)(e) may permit strike-out even without personal fault if a fair hearing is no longer possible. Evidence of perjury, subornation, or pressure to give partisan evidence could justify that conclusion. The conversations overheard did not indicate that any witness had altered evidence, intended to give false evidence, or would give unreliable evidence. The Employment Judge had accepted the witnesses as truthful. There was consequently no basis for finding the hearing irredeemably unfair.

5. The case was remitted for procedural management by a different Employment Judge, who would decide whether a new hearing was necessary or whether the hearing could continue using notes or agreed evidence.

• Employment Appeal Tribunal: allowed the appeal against the Employment Judge’s strike-out decision and remitted the matter to the Employment Tribunal before a different Employment Judge.
• Employment Tribunal: struck out the appellant’s response, save in one minor particular, under rules 37(1)(b) and 37(1)(e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.