12 Apr 2018

In Chidzoy v British Broadcasting Corporation UKEAT/0097/17, the Employment Appeal Tribunal (EAT) had to decide whether the employment tribunal (ET) had erred in striking out Ms Chidzoy's claim part-way through a full merits hearing on the ground of Ms Chidzoy's conduct in talking to a journalist during a break in her cross-examination, despite having been warned by the ET against speaking to anyone about the case. 

Facts

Ms Chidzoy had worked for the BBC as a journalist and home-affairs correspondent for 29 years and was pursuing claims before the ET of whistleblowing, sex discrimination, victimisation and harassment which were resisted by the BBC.  An 11 day full merits hearing commenced on 6 February 2017.  On 7 February, the ET began to hear Ms Chidzoy's evidence.  There were a number of breaks during the course of Ms Chidzoy's evidence.  On each occasion (at least six), the ET adopted its usual approach and advised Ms Chidzoy that she must not discuss her evidence or any aspect of the case with anyone during each such adjournment. 

On 9 February the ET took a short break and again warned Ms Chidzoy that she remained under oath and should not discuss her evidence or the case, but that this would be the last warning as her cross-examination was nearly at an end. 

Before the hearing was adjourned, Ms Chidzoy's cross-examination had concerned an email that had been circulated in the BBC discussing a story about the Dangerous Dogs Act and referring to Ms Chidzoy as "Sally Shitsu".  Ms Chidzoy objected to the terminology used as she found it demeaning and generally abusive.  The BBC put forward an argument to suggest that Ms Chidzoy had said that she would not have objected if she had been called 'Sally Terrier' or 'Sally Rottweiler', though this was denied by Ms Chidzoy. 

Following the break, the BBC's representative indicated to the ET that she needed to raise a serious matter, namely that during the adjournment Ms Chidzoy had been seen in discussion with a journalist working for a local newspaper and the words "dangerous dogs" and "Rottweiler" had been overheard.  Ms Chidzoy's representative maintained that Ms Chidzoy had not discussed her evidence with the journalist. 

Employment tribunal decision

The ET concluded that Ms Chidzoy's claim would be struck out in its entirety on the grounds that it found as a matter of fact that Ms Chidzoy was engaged in discussion with the journalist about the case and her evidence.  The ET further concluded that this had constituted unreasonable conduct on Ms Chidzoy's part.  The ET did not infer that similar conduct might have taken place on previous occasions but was troubled by the apparent discrepancy in the account given by Ms Chidzoy and her representative.  It asked itself whether a fair trial was still possible, but decided that the trust that the ET should have in the claimant had been irreparably damaged.  Warnings given by the ET had been disregarded; information passed between a third party and a witness during that person's evidence runs the substantial risk of corrupting the evidence of the person concerned and that is why clear warnings are given.  Ms Chidzoy appealed to the EAT. 

Employment Appeal Tribunal decision

The EAT dismissed the appeal.  Her Honour Judge Eady QC, sitting alone, held that the ET had adopted an entirely fair process, which entitled it to make the findings it did as to what had taken place and had permissibly concluded that Ms Chidzoy had thereby unreasonably conducted the proceedings.  The ET had correctly asked itself whether it was proportionate to strike out the claim and had considered whether there were any alternatives but had concluded that there were none due to the irretrievable loss of trust arising from the claimant's conduct.  The ET had reached entirely permissible conclusions that led it to determine that Ms Chidzoy's case must be struck out. 

Comment

This is a salient reminder for witnesses but also to those representing parties in proceedings of the importance of heading warnings given by the ET during evidence.  While the warning not to discuss evidence or the case whilst under oath or affirmation may be posed as an instruction by the ET, it is tantamount to an order and the ET has the power to strike out a claim or part of a claim at any time during proceedings either by its own volition or based on an application by one of the parties to the proceedings.