A recent tribunal decision to strike out a claim part way through the claimant’s cross-examination is an important reminder for witnesses not to discuss the case during any break in proceedings.

A recent tribunal decision to strike out a claim part way through the claimant’s cross-examination is an important reminder for witnesses not to discuss the case during any break in proceedings. 

Chidzoy v British Broadcasting Corporation, ET

Facts

The claimant, Ms Chidzoy, was pursuing a claim against the BBC that was listed for an eleven-day hearing. Ms Chidzoy was part way though being cross-examined on day four of the hearing when the tribunal adjourned for a short comfort break. Prior to the adjournment she had been warned that she remained under oath and was not to discuss her evidence or any aspect of the case with anyone else. 

During the break, Ms Chidzoy was observed by the respondent’s counsel (and others) in discussion with a third party, who was subsequently identified as a newspaper journalist. The tribunal was informed and the BBC made an application for the claimant’s case to be struck out.

Employment tribunal decision

The tribunal struck out Ms Chidzoy’s claim on the grounds that her conduct had been unreasonable and it was no longer possible to have a fair hearing.

There was a conflicting account of the sequence of events and exactly what had been discussed between the claimant and the journalist, but it was not disputed that they had been on their own for a short period of time. Ms Chidzoy had been warned before each adjournment of the hearing that she should not discuss her evidence or any aspect of the case with anyone else. She was legally represented, and her representative should have understood the importance of a witness not engaging in discussion during their evidence. The tribunal found that her representative had either facilitated the discussion, or permitted it by passive conduct.

The tribunal decided unanimously that a fair trial was no longer possible, neither before the same nor a differently constituted tribunal. It concluded: “it is the fatal damage to our trust in the claimant and the way the case is conducted on her behalf that has led us to the unanimous conclusion that it was not possible for a fair trial of any of the issues in this case to take place”.

Consequences

This case demonstrates how important it is for witnesses to follow the instructions of the tribunal and not to engage in any conversation about the case until their evidence has concluded.

The claimant in this case asserted that she had exchanged nothing more than “pleasantries” with the journalist, but clearly the tribunal struggled to accept her version of events. To avoid any conversations being misconstrued, witnesses in tribunal proceedings should ensure that they ‘quarantine’ themselves during any adjournments while they are still under oath. 

The content of this article is for general information only. For further information regarding the above case, please contact a member of Birketts’ Employment Law Team. Law covered as at March 2017.