Following a recent experience of witness intimidation at the Tribunal and given the rarity of such incidents, it is useful to reflect on the law relating to applications for strike out on the grounds of unreasonable behaviour and offer some practical considerations for the innocent party and their representatives in such circumstances.
Brief facts
Laura was instructed in a final hearing to resist claims of unfair and wrongful dismissal. The Respondent’s Investigation Officer was part-heard in his evidence during a lunch break.
Whilst waiting alone for the lift to depart the building, the witness was confronted by the Claimant and his friend. The Claimant swore at the witness and made a comment which was aggressive and threatening. The Respondent’s witness was shaken by the incident and reluctant to continue with his evidence through fear of reprisals from the Claimant.
The exchange at the Tribunal followed a series of aggressive public outbursts directed at the witness by the Claimant since his dismissal.
Strike Out: Unreasonable behaviour
Rule 37(1) of the Employment Tribunals Rules of Procedure 2013 (as amended) provides:
“At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds –
(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or otherwise vexatious;
(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).”
Rule 2 of the Employment Tribunals Rules of Procedure 2013 provides:
“The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with cases fairly and justly includes, so far as practicable –
(a) ensuring that the parties are on an equal footing;
(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;
Article 6(1) of the European Convention of Human Rights provides:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The relevant test in intimidation cases is set out in the cases of Bolch v Chipman [2004] IRLR 140, Blockbuster Entertainment Ltd v James [2006] IRLR 630 and Gainford Care Homes v Tipple and Roe [2016] EWCA 382:
(a) Has the party in question conducted proceedings in a scandalous, vexatious, or unreasonable manner?
(b) Has the unreasonable conduct taken the form of deliberate and persistent disregard of required procedural steps or made a fair hearing impossible?
(c) Even if a fair trial is conceivable what is the appropriate remedy, having regard to the principles of proportionality?
(d) If a claim or response is struck out, what further consequences might follow e.g. should a party be debarred from participating in the liability stage only?
The law envisages that intimidation, aggression and threats against witnesses by another party, are capable of reaching the threshold of unreasonable conduct. However, there must be some nexus between a party's scandalous, unreasonable or vexatious behaviour and the Tribunal proceedings. Such determination will turn on the facts of each case.
There may be exceptional cases where the unreasonable conduct can lead to an immediate debarring order (without the need to consider whether a fair trial is possible) because it is so serious it would be an affront to the ET to permit party to prosecute their case any further (De Keyser v Wilson [2001] IRLR 324). It is unlikely, even in cases of direct and extreme levels of intimidation, such cases would fall within the exception.
Practical Considerations
Here are some practical steps for an innocent party and a representative to consider in cases of intimidation at the Tribunal:
- Is there likely to be a dispute of facts relating to the event? If so, take a proof of evidence from relevant witnesses.
- If the witness is part-heard in evidence, the representative should ensure they are accompanied when they take a proof. You should limit your discussion to the incident and its impact. You should not discuss any other aspect of the ongoing case.
- What is the impact on the witness, if any? What is the impact on the other trial witnesses, if any?
- Has the innocent party suffered any prejudice?
- How is the future conduct of the trial affected as a result of the incident if at all?
- Was the incident caught on the Tribunal’s CCTV? Are you content for the Tribunal to view it in the absence of the party? Or should the hearing be adjourned, and an application made for disclosure of the footage?
- What practical measures could the Tribunal put in place to minimise the impact on witnesses and/or minimise the prejudice e.g. cross examination to be posed in writing, staged entry and departure from the Tribunal room, the presence of security in the Tribunal during evidence.
- Should the police be informed – has a crime been committed?
- Should Tribunal security be informed – there may be a security risk or it may simply put the affected witness(es) at ease.
- Should the Tribunal clerk be informed – remember they work alone and may have additional safeguarding measures they want to put into effect.
- Should the Tribunal be notified, either as a warning to a party or and a precursor to any consequential applications.
Conclusions
In Laura's case, the Tribunal refused the strike out application and found a fair trial was still possible. The Claimant was debarred from putting questions to the witness and the cross-examination was restricted by the Tribunal. In addition, staggered entry and departure times were utilised for the parties during the hearing.
It is worth remembering that the sole purpose of a strike out order is not punitive, rather it is to protect the other party and the integrity of the judicial system from intimidatory behaviour. Therefore, you can expect the Tribunal to carefully analyse what steps short of strike out could be taken to alleviate or minimise any prejudice suffered by the innocent party and scrutinise closely why it is said, those measures do not go far enough. Ultimately, the innocent party must be aware that even in serious cases, strike out is always a last resort.