28th November, 2023

"Don't discuss the case with anyone until your evidence has finished" (we really mean it!)

In November, Rachael Levene and Louise Quigley successfully got a multi-day claim of race discrimination struck out after the Claimant failed to heed the warning of not discussing the case until her evidence was complete.

Relevant Background Facts

The Claimant, a mental health practitioner, brought a claim raising multiple types and instances of race discrimination against her employer. The Claimant also named 2 fellow employees as individual Respondents. Rachael acted for the employer and those named Respondents. The Claimant also sued another individual Respondent, who was employed by a different organisation, relying on the doctrine of agency.

After a number of case management hearings, the case was listed for 5 days, to be heard in Manchester ET. Shortly before the hearing the Claimant’s representatives came off the record and the Claimant attended in person.

On the first day, just a few minutes before the hearing was due to commence, the Claimant applied to introduce a brand-new, lengthy witness statement and almost 300 pages of documents, including covert recordings of meetings. (It was also clear from her application that she had sacked her representatives). The first day was spent dealing with her application, which failed in its entirety.

The tribunal resumed to do its reading on the morning of day 2. After lunch, Rachael cross-examined, which continued into the afternoon of day 3. Louise then picked up the reins and began to cross-examine on behalf of her client. Louise’s cross-examination was due to conclude on day 4. It was apparent that the hearing would not finish within the allocated time, and this was discussed during the tribunal with the Judge.

At various points, the Judge gave the Claimant the usual warning not to discuss her evidence and made clear that this meant that she should not speak to anyone at all about the case whilst mid-evidence.

What the Claimant did next...

On the morning of day 4, instructing solicitors received an email from the Claimant's newly appointed representative. In that email, the Claimant’s representative argued that the hearing should conclude after the Claimant’s evidence (presumably to allow him time to prepare cross-examination!) and go part heard, to resume for a number of days at a later date. He commented on the timing issues of the case and argued that the hearing was not going to finish within the allotted timescale anyway. The letter of authority was also provided and referred to the Claimant having had a telephone conference with the representative on her sister’s invitation.

For Rachael and Louise this raised immediate red flags. The only way the representative would know about the timing issues was if the Claimant had spoken about her evidence, and so breached the clear warning not to discuss the case. Moreover, if the Claimant had had a telephone conference – as stated in the letter of authority - she must have discussed her case.

Application for Strike out and consideration of Chidzoy v BBC

Louise and Rachael duly made an application for strike out, on the basis that a fair trial was no longer possible. They relied on the case of Chidzoy v British Broadcasting Corporation UKEAT/0097/17 in which the EAT upheld an employment tribunal’s decision to strike out a claim on the ground of unreasonable conduct after the Claimant was found to have discussed her case with a journalist during an adjournment, whilst she was still under oath. In that case, the employment tribunal found that a fair trial was no longer possible and that it had lost trust in the Claimant who should have understood the clear instruction not to discuss the case whilst still under oath and undergoing cross-examination.

It was also submitted that even if a fair trial was possible, the breach was so serious that the matter should be struck out regardless.

The Claimant objected to the application. She said that she had not ‘discussed’ her evidence, but spoke rather with the representative and had calls to negotiate cost. She accepted that she had sent the representative all the documents.

At this stage the Claimant's representative had not attended the tribunal. He had said he would arrive around midday but did not appear until after lunch.

When the Claimant's representative arrived, the parties were called back into the tribunal. The Claimant’s representative was asked to provide his submissions on the application to strike out. He stated that he had been instructed by the Claimant’s sister. However, this did not chime with what the letter of authority stated. It also made no sense, because the Claimant’s sister had not been present at the tribunal, so could not have provided the information which the representative clearly had about timings.

After a detailed judgment, the tribunal struck out the Claimant’s case and concluded that a fair trial was no longer possible. The tribunal considered alternatives to strike out, but found that they were inadequate to address the unreasonable conduct, which was irreversible.

This case serves as a useful reminder that the judicial warning is real, meaningful and can lead to strike out if it is not observed, even of lengthy discrimination claims.

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