M Odusanya v Pennine Care Foundation Trust & Ors

When strike-out is sought because a witness under oath discussed the case, the tribunal should ordinarily ascertain what was discussed. The content is necessary to assess interference with the administration of justice, whether a fair trial remains possible, and whether a lesser measure is adequate.

A tribunal may nevertheless strike out for deliberate and contumelious disobedience where it properly rejects a dishonest account of the discussion. A party under oath may not discuss their evidence with a representative, but the statutory right to representation includes obtaining advice on a separate procedural or legal issue arising during the hearing. Fairness may require a controlled consultation before a potentially dispositive strike-out application is answered.

The claimant’s claims were struck out by the Employment Tribunal under rule 37(1)(b) and (e) of the Employment Tribunal Rules 2013. While under oath during her evidence, she instructed a new representative through her sister. The Tribunal found that she had discussed her case and evidence despite repeated warnings, and held that a fair trial was no longer possible.

She appealed, alleging a misapplication of Chidzoy, interference with her right to representation under section 6(1) of the Employment Tribunals Act 1996, procedural unfairness, an overbroad warning, and disproportionate strike-out. The central issue was whether the Tribunal fairly determined the strike-out application after refusing her request to obtain advice from her newly instructed representative.

1. Appeal allowed in part. The strike-out was set aside. Grounds 2 and 3 succeeded; grounds 1, 4 and 5 failed.

2. An Employment Tribunal considering strike-out for a discussion while a witness remains under oath should normally investigate the discussion’s content. That inquiry is ordinarily needed to assess the interference with the administration of justice, the possibility of a fair trial, and the availability of a proportionate alternative to strike-out. However, where the Tribunal rejects the claimant’s account as dishonest, it may treat that dishonesty and disobedience as deliberate and contumelious conduct capable of satisfying the De Keyser basis for strike-out.

3. The warning’s purpose is to prevent outside influence on a witness’s evidence. It does not justify a blanket prohibition on all discussion of a case. A witness under oath cannot discuss their evidence in order to instruct a representative. Yet section 6(1) of the Employment Tribunals Act 1996 protects representation in the wider sense of advice, preparation and advocacy. Where a new, potentially dispositive procedural issue arises, fairness may require a limited consultation about that issue.

4. The claimant expressly sought to speak to her lawyer before answering an application that could end her claim. The Tribunal’s refusal deprived her of representation on that issue and created procedural unfairness. Her remaining under oath did not cure that defect, because she was not fairly given an opportunity to obtain advice before providing her account.

5. The Tribunal’s factual finding that the claimant had discussed her evidence would, if reached through a fair process, have established breach of a properly limited warning. On those assumed findings, strike-out would have been proportionate and a fair trial could have become impossible.

6. The matter was remitted to a differently constituted Employment Tribunal. The original panel had made significant credibility findings and expressed a lack of trust in the claimant’s evidence.

• Employment Appeal Tribunal: Allowed the appeal in part and set aside the Employment Tribunal’s strike-out decision.
• Employment Tribunal: Struck out the claimant’s claims under rule 37(1)(b) and (e) of the Employment Tribunal Rules 2013. No citation was stated.