Chidzoy v. British Broadcasting Corporation, Court of Appeal - United Kingdom Employment Appeal Tribunal, April 05, 2018, [2018] UKEAT 0097_17_0504

Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Chidzoy v. British Broadcasting Corporation
Resolution Date:April 05, 2018
 
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Copyright 2018

Appeal No. UKEAT/097/17/BA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 9 February 2018

Judgment handed down on 5 April 2018

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

MS S CHIDZOY APPELLANT

BRITISH BROADCASTING CORPORATION RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0097/17/BA

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE - Striking-out/dismissal

Strike out of claim - unreasonable conduct of proceedings

During a short break in the course of giving evidence at the Full Merits Hearing of her claims, the Claimant participated in a conversation with a journalist, which included some discussion about the case and about a particular aspect of the Claimant's evidence given shortly before the break. Aspects of this were overheard by one of the Respondent's witnesses and by two members of its legal team, who brought the matter to the attention of the ET. Allowing the Claimant to give instructions to her legal representative and to thus provide an initial account of what had taken place, the ET then adjourned for a long weekend to enable the parties to provide statements about this matter. Upon the resumption of the hearing, the Respondent applied for the claim to be struck out due to the Claimant's unreasonable conduct of the proceedings. Concluding that the Claimant had indeed been party to a discussion about her evidence, in flagrant disregard of the warnings given by the ET on six separate occasions that she must not do so when still giving evidence, the ET concluded that it had irretrievably lost trust in the Claimant and could no longer fairly hear her case. It considered whether there were any alternatives to striking out the claim but concluded that there were none. It therefore struck out the Claimant's case. The Claimant appealed.

Held: dismissing the appeal

The ET had correctly addressed the four questions identified in Bolch v Chipman [2004] IRLR 140 EAT. Adopting an entirely fair process, it had been entitled to make the findings it did as to what had taken place and had permissibly concluded that the Claimant had thereby unreasonably conducted the proceedings. The ET had gone on to consider whether it could still conduct a fair trial of the Claimant's case but, having concluded that trust had broken down, had correctly concluded it was not. Asking itself whether it was proportionate to strike out the claim, the ET had considered whether there were any alternatives but had concluded there were none. In the circumstances, that was a conclusion that was open to it and the challenge to its decision to strike out the claim would be dismissed.

UKEAT/0097/17/BA

- 16 -

HER HONOUR JUDGE EADY QC

Introduction

  1. This appeal concerns the approach of the Employment Tribunals (``the ET'') to the striking out of a claim, part-way through a hearing, due to the Claimant's conduct in talking to a journalist during a break in her cross-examination, after she had been warned by the ET against speaking to anyone about the case. In giving this Judgment, I refer to the parties as the Claimant and Respondent, as below. This is the Full Hearing of the Claimant's appeal from a Judgment of the Cambridge ET (Employment Judge Ord, sitting with members Mr Davie and Mr Reuby, on 6 to 9 and 13 February 2017), sent out on 23 February 2017, by which the Claimant's claim was struck out in its entirety. Before the ET, the Claimant was represented by her solicitor, Mr Jackson; she now appears by Ms Brown of counsel. The Respondent was represented below by Ms Belgrove of counsel, who continues to represent its interests on this appeal, albeit now led by Mr Jones QC.

  2. The Claimant's proposed appeal in this matter was set down by HHJ Hand QC for an Appellant-only Preliminary Hearing. That came before me on 31 July 2017, when I permitted the appeal to proceed on the basis of amended grounds.

    The Relevant background and the ET's Decision and Reasoning

  3. The Claimant had worked for the Respondent as a journalist and home-affairs correspondent for some 29 years. She was pursuing claims before the ET of whistleblowing, sex discrimination, victimisation and harassment. Those claims were resisted by the Respondent. A Full Merits Hearing of the claims had been listed before the ET, for 11 days, commencing on 6 February 2017. It is with events that took place at the hearing with which the current appeal is concerned.

  4. As recorded in the ET's Judgment, the hearing initially proceeded in uneventful fashion. Having spent the first day engaged in preliminary reading and clarifying the issues for determination, on Tuesday 7 February the ET began to hear evidence from the Claimant. After confirming the truth of her witness statement - standing as her evidence-in-chief - the Claimant was cross-examined by counsel for the Respondent. That cross-examination continued through Wednesday 8 February (allowing for the interposition of two witnesses for the Claimant due to their limited availability) and into Thursday 9 February. There were breaks during the course of the Claimant's evidence (comfort and meal breaks as well as at the end of the day) and, on each occasion, the ET - adopting its usual course - advised her that she must not discuss her evidence or any aspect of the case with anyone during each such adjournment.

  5. Shortly before noon on Thursday 9 February, the ET took a short break and again warned the Claimant in similar terms, observing this was likely to be the last time she would be given this warning as her cross-examination was approaching the end.

  6. The hearing resumed at 12.20pm, at which stage Ms Belgrove, counsel for the Respondent, advised that she needed to raise a serious matter with the ET, namely that during the adjournment the Claimant had been seen in discussion with a third party (later identified as Ms Gliss, a journalist working for a local newspaper, the Eastern Daily Press). The ET allowed the Claimant the opportunity to speak with her solicitor about this matter and a further adjournment took place until 12.55pm.

  7. The ET records what took place next, as follows:

    ``7. On resumption of the Hearing, Mr Jackson on behalf of the Claimant stated that the Claimant had not been discussing her evidence. He told us at the time (as per the Judge's note crossed checked [sic] with the Members' notes and the record provided by Miss Belgrove's instructing solicitor) that:

    1) Mr Jackson had offered to speak to the relevant journalist.

    2) That they went together towards a room where the Claimant was sitting on her own and therefore did not enter that room but spoke outside the room (or in another room).

    3) Mr Jackson then went into the room where the Claimant was to retrieve copies of some witness statements.

    4) Subsequently Mr Jackson and the Claimant and the journalist were all together in the open waiting area.

    5) Mr Jackson then left to go to the lavatory leaving the Claimant and the journalist together.

  8. Mr Jackson said that he had not heard anything said that was ``untoward''.

  9. To allow for the opportunity to have a full account of this matter from both parties, and to give the Respondent time to consider whether it wished to make any application arising from these events, the ET then adjourned until Monday 13 February 2017 (it had not been due to sit on Friday 10 February in any event).

  10. On the resumed hearing, the Respondent made an application to strike out the claim under Rule 37(1)(b) and (e) Schedule 1 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (``the ET Rules''). In support of this application, the Respondent had adduced statements regarding the events of Thursday 9 February from Ms Belgrove, her instructing solicitor and from one of the Respondent's witnesses, Mr Silk. For her part, the Claimant had also provided her own statement and one from Mr Jackson, as well as a hand-written note from Ms Gliss.

  11. The ET recorded the relevant evidence from the Respondent - as derived from its statements - as follows:

    ``18. According to the Respondent's submissions and the reports of events provided by her instructing solicitor and witnesses, it was her instructing solicitor, Ms Janjua who first reported to Miss Belgrove that she had seen the Claimant with another person in discussion and specifically heard the Claimant use the word ``Rottweiler''. She immediately reported this to Miss Belgrove.

    ...

  12. Acting on what Ms Janjua told her ... Ms Belgrove went into the area where she had been told the Claimant was in discussion. En route she met Mr Silk who reported that the Claimant was in discussion with a third party and that he had heard discussion about ``dangerous dogs''. Miss Belgrove then approached the Claimant and the journalist, herself heard use of the word ``Rottweiler'' (but could not say who said it) and intervened in the discussion. As it broke up either the Claimant or the Journalist (Miss Belgrove could not say which) was heard by her to say ``sorry, I have known her for ages''.''

  13. As for the statements adduced by the Claimant, the ET noted:

    ``21. According to Mr Jackson's statement produced today the events were these. He, the Claimant and the Journalist briefly stood as a group of three in the lobby area in discussion. Mr Jackson then went to the bathroom saying he would return and provide the information the Journalist needed. On return, he said, the Claimant had gone. He invited the Journalist into a room and she said she could not go in because the Claimant was there and so Mr Jackson and the Journalist went to an adjacent room to discuss the case and he provide [sic] for her sight of some witness statements.

  14. The Claimant's report of events was that she was approached by the Journalist as she was leaving the Tribunal room for the adjournment and that they may have shaken hands. Everyone left the Tribunal room and the Claimant says that she walked over to the reception desk where she stood waiting for Mr Jackson because he would normally take her into the room where she would...

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