Strike out the bullies
Date: 11 July 2008
Authors: Sarah Fitzpatrick and Elisabeth Griffiths
Issue: Vol 158, Issue 7329
Categories: Features, Employment
Two recent cases in the Employment Appeal Tribunal (EAT) have explored the issue of intimidation of witnesses at employment tribunal proceedings and the consequences of such action. These cases make it clear that the potential consequences are very serious and include the possibility that the offending party's pleadings could be struck out and that any intimidatory conduct could give rise to a further cause of action for the claimant.
Force One Utilities v Hatfield
In Force One Utilities Ltd v Hatfield UKEAT/0048/08, [2008] All ER (D) 130 (May) the claimant, Hatfield, presented a claim for unfair dismissal against the respondent, his ex-employer, Force One Utilities Ltd. Hatfield represented himself at the employment tribunal hearing. It came to light at the hearing in April 2007 that a key witness for the respondent, a Mr Shuter, had made a serious threat of physical harm to Hatfield. Shuter said that Hatfield should “watch how you sleep at night” and “you've got one over on me today, you won't get another one over on me again. You're getting no fucking money out of me”. Hatfield was concerned for his personal safety and had contacted the police.
Hatfield briefly advised the tribunal of Shuter's behaviour after the incident in April 2007 and in more detail at a subsequent hearing in September 2007.
Strike out
In September 2007 the tribunal adjourned the hearing of the case to consider whether they should strike out the response in whole or in part as they are permitted to do on the grounds that the manner in which proceedings have been conducted has been scandalous, unreasonable or vexatious, under r 18(7)(c) of Sch 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861 (the ET Rules of Procedure).
The tribunal heard both Shuter and Hatfield's evidence as to the alleged intimidatory conduct. Hatfield's evidence was preferred by the tribunal.
To determine if strike out was an appropriate response to the intimidatory conduct the tribunal considered the relevant authorities, most notably the case of Bolch v Chapman [2004] IRLR 140, [2003] All ER (D) 122 (Nov). Bolch established a three-stage test:
(i) Had the conduct related to the manner of proceedings?
(ii) Did the conduct make it impossible to hold a fair trial?
(iii) If so, was there some response short of barring the wrongdoing party which would be proportionate?
The tribunal accepted that the conduct related to the manner of the proceedings and went on to determine that a fair trial was not possible; Hatfield was in real fear and there was concern that his evidence would not be reliable if it came into conflict with the evidence advanced by the respondent. Finally the tribunal concluded that striking out the response was a proportionate response to the intimidation and ultimately determined that the respondent should be debarred from both the liability and remedies hearing.
The EAT
Four grounds of appeal were presented to the EAT on behalf of the respondent. Judgment was handed down by Mr Justice Elias, president of the EAT, in April 2007. Three of the grounds of appeal are relevant to this article:
(i) There was an error in analysing whether a fair trial was possible.
This ground of appeal was rejected by the EAT which held that it would only succeed if the conclusion of the tribunal was perverse and “once intimidation of this kind is found to have occurred, it will be a very exceptional case indeed where it cannot be said that a finding of a fair trial is perverse”. The EAT made it clear that if the intimidation occurred at some late point in proceedings a fair trial was still possible. We suggest that a suitably late point may be when all the evidence has been heard or, at least, when the evidence of the witness who has been subjected to intimidation has been heard.
(ii) The decision to strike out was disproportionate.
It was not in dispute that strike-out is a draconian power. However, it was the decision of the EAT that once a tribunal finds that a party is subject to intimidation which may affect his or her ability to give evidence the only proportionate response can be to bar the other party from participating in the trial.
(iii) The respondent should not be liable for the acts of its witness.
It was submitted to the EAT that on the basis that a party can disassociate itself from what a representative has done the same must be true of a witness. This submission was rejected by the EAT. The relevant witness in this case was a director of a sister company of the respondent and had been involved in negotiations with the claimant. Rule 18(7)(c) of the ET Rules of Procedure refers to unacceptable conduct “by or on behalf of” a party. This clearly encompasses the actions of a key witness.
The EAT rejected the grounds of appeal and upheld the tribunal decision to strike out the respondent's response.
Nicholls v Corin Tech LTD
In Nicholls v Corin Tech Ltd UKEAT/0290/07 the claimant, Nicholls presented a claim for disability discrimination against four respondents; his ex-employer, Corin Tech Limited, the parent company, Larasarian Limited, Mr C O'Connell the group's HR adviser and Corin Tech's owner and one of its directors, Mr Currie. Nicholls represented himself at the employment tribunal hearing and Currie represented himself and the other respondents.
On 11 and 12 April 2007 there was a hearing at Southampton Employment Tribunal to determine whether or not Nicholls was disabled within the meaning of the Disability Discrimination Act 1995 (DDA 1995).
Nicholls raised objections to some of the ways in which the respondents had prepared for and conducted the hearing before the tribunal and also complained that immediately after the hearing he had been subjected to threats and abuse by Currie.
It was alleged that Currie said, in a very angry tone:
“Fucking jailbird. Fucking crook. Do not say any more allegations about my employees. Don't say a word, if you do, I will give you a disability. You fucking crook.”
Nicholls asserted that this was further evidence of the respondents' harassment of him and presented these objections in new proceedings before the employment tribunal on 22 April 2007.
The new claim was rejected by the tribunal on the basis that the matters he sought to complain about attracted immunity because they were things said or done in the course of judicial proceedings.
The EAT
Nicholls's appeal against the tribunal's rejection of his fresh claim about the preparation for and conduct of the hearing before the tribunal was turned down at a preliminary hearing on 10 October 2007. However, a full hearing was allowed as to whether the complaint about Currie's threatening conduct after the hearing was capable of being heard by the tribunal as a fresh claim of discrimination. Judgment was handed down by Mr Justice Underhill in March 2008.
It was accepted by the EAT that the claim presented by Nicholls was actually one of victimisation rather than harassment as alleged and at the time of the alleged acts, Nicholls was no longer employed by the Corin Tech Limited.
He relied, however, on DDA 1995 s 16A which allows an employee to bring a claim against his ex-employer for acts of discrimination arising out of and closely connected to the employment relationship.
The issues for determination on appeal, although not necessarily the only issues that would arise if the claim proceeded, were:
(i) Whether the threatening conduct complained of, if proved, could give rise to another claim of discrimination, namely victimisation, because they were acts “arising out of and closely connected to” the employment relationship.
The EAT was keen to emphasise that the acts should not only “arise out of ” the relationship of employment but that the connection should be “close”. On this occasion the conduct in question occurred not only because Nicholls had brought proceedings under DDA 1995 but was also possibly intended to persuade Nicholls not to proceed with his claim. If this were proven, the EAT held, the conduct in question could be sufficiently connected with the employment relationship to potentially give rise to an act of unlawful discrimination. However, this would ultimately be a question for the tribunal to determine.
(ii) Whether such a claim would fail because the conduct complained of attracts judicial immunity.
The EAT referred to the most recent authority on immunity—Heath v Commissioner of Police of the Metropolis [2005] ICR 329 CA, [2004] All ER (D) 359 (Jul)—and accepted that the policy underlying judicial immunity is that it is necessary in the interests of court proceedings that those taking part should be able to express themselves freely without risk of being sued for something they have said. However, it was held that the incident in the corridor outside the lift did not form part of the judicial process and therefore could not attract immunity.
The appeal was accordingly allowed and the claim was allowed to proceed against two of the respondents, Corin Tech Ltd and Currie.
Further Claims
It is clear parties to proceedings can be liable for the acts of their witnesses and a claim or response can be struck out due to unacceptable behaviour by or on behalf of a party to the proceedings.
Lawyers acting for both the respondent and claimant should be aware of what behaviour is unacceptable and advise their clients and witnesses accordingly.
The actions that are open to the tribunal in response to intimidatory conduct depend on the timing of the intimidatory conduct and the nature of the conduct.
If the intimidatory conduct is directed at a witness who has already completed his evidence a fair trial may still be possible and strike-out would be an inappropriate sanction.
It is also clear that such intimidatory conduct would not form part of the judicial proceedings so as to attract immunity and, if sufficiently closely connected to the employment relationship, could give rise to a further actionable claim of unlawful discrimination.
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