Witnesses must comply with Employment Tribunal rules or risk damaging the case

Written on 16 Mar 2017

Discussing a claim with a journalist is never a step to be adopted lightly but, as one claimant found out, doing so whilst you are in the middle of actually giving your evidence at an Employment Tribunal (ET) is an extremely bad idea. Her claim was ultimately struck out by the ET. However, the lesson is not just one restricted to claimants or journalists – it is applicable to all witnesses in the ET who choose to speak to any third party whilst under oath.

Tribunal’s trust in the witness “irreparably damaged”

Last week, during a comfort break, and towards the end of a 3 day cross examination by her opponents counsel, a claimant, still under oath, was seen by the respondent in discussions with a third party, later identified as a journalist. The respondent subsequently applied for the case to be struck out on the basis that the manner in which the proceedings had been conducted was scandalous or unreasonable and that it was no longer possible to conduct a fair trial. The ET, having heard a full version of events from both sides about what had actually happened, found that its trust in the claimant had been irreparably damaged and that it was now impossible for a fair trial to take place. Her case was dismissed.

A witness under oath is prohibited from discussing their evidence or any aspect of the case with anyone.

It is often the case that witnesses are in the middle of giving evidence when the ET hearing adjourns. The length of this adjournment varies and may only be for a short comfort break, over lunch or overnight, but the same rules apply regardless. The witness is under oath and is prohibited from discussing their evidence or any aspect of the case with anyone during the adjournment. This prohibition is designed to ensure their evidence is not corrupted by the intervention of third parties.

An  ET judge will always explain this to the witness prior to any adjournment.

When ostracising fellow work colleagues is acceptable!

To avoid any possible suggestion that a witness has contravened this, the best course of action is always to ostracise or quarantine the witness – so, an adjournment over lunch, for example, means that a witness lunches alone, speaks to no-one and stays away from the rest of their party until they have finished their evidence. Any conversation, however innocent, may well come under the ET’s scrutiny and the consequences could have severe repercussions for the case you are seeking to make: that is, if it is even allowed to proceed.

If you have any queries, please do not hesitate to contact your usual Osborne Clarke contact or Phillip Chivers.