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18th April 2017

Claim struck out after claimant had discussions with journalist during trial

In a recent case, an Employment Tribunal considered whether a claimant’s case should be struck out after the claimant discussed her case with a journalist during a break from giving evidence.

Under the rules which apply to the process and procedure in Employment Tribunals, the Tribunal can strike out part or all of a claim or response at any time during the proceedings either of its own volition or following an application on the following grounds:

  • it is scandalous or vexatious or has no reasonable grounds of success;
  • the manner in which the case has been conducted has been scandalous, unreasonable or vexatious;
  • the party has not complied with any of the rules or with an order of the Tribunal; or
  • the case has not been actively pursued; or it is no longer possible to have a fair hearing.

At a hearing when a party or witness is giving evidence, they can not discuss the claim with anyone. This applies if evidence is not completed at the end of a day or over lunch, for example.

In the current case, the claim was listed for an 11 day hearing and the claimant was cross examined for two days. Due to their availability, two witnesses gave evidence and thereafter the claimant’s evidence was completed on a third day, after the witnesses had given evidence. On this day there was a break shortly before midday and the claimant was warned that she remained under oath and should not discuss the case with anyone, as she had been warned previously.

On return from the break, the barrister for the other party told the Tribunal that the claimant had been seen in discussions with a third party (who was later identified as a journalist).

The hearing was adjourned so that the claimant could speak to her representative who informed the Tribunal that he had offered to speak to the journalist and subsequently the claimant was left with the journalist in the waiting area, but the representative had not heard anything ‘untoward’ and that the claimant advised him that evidence had not been discussed.

The Tribunal adjourned the hearing and the other side made an application to strike out the claim on the basis that the manner in which the proceedings had been conducted had been scandalous or unreasonable and that it was no longer possible to have a fair trial.

The Tribunal struck out the claimant’s claim deciding that the claimant’s conduct had been unreasonable and a fair trial was no longer possible.

The case demonstrates the importance of abiding by the warnings given by tribunal judges in respect of conduct during hearings, in particular in respect of discussing evidence whilst under oath.


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