News & Insights

Quiet please!

We explore a case which was struck out due to the claimant discussing the case while under oath.

In a recent case heard at the Employment Appeal Tribunal (EAT) a decision to strike out whistleblowing and sex discrimination claims brought by Ms Chidzoy, a BBC reporter, was upheld after she was overheard discussing the case with a journalist while still under oath.

The respondent applied to strike out the case pursuant to the Employment Tribunals Rules citing unreasonable conduct by Ms Chidzoy. The respondent further argued that this created the impossibility of a fair hearing. The tribunal agreed and the case was struck out. Ms Chidzoy appealed.

After deliberating on whether or not striking the claim out infringed Ms Chidzoy’s freedom of expression rights or her right to a fair trial, the EAT agreed with the tribunal’s ruling that it would not infringe her rights.

Case law provides guidance on whether a tribunal should or should not strike out a case. The EAT applied a test which sets out a number of considerations including; whether the proceedings have been conducted unreasonably; whether a fair trial is still possible; the nature of the remedy and what may be appropriate and whether a lesser sanction would be more fitting. Having applied this test the EAT found that it was proportionate for the case to have been struck out.

This case is an important reminder for employers involved in proceedings to ensure the witnesses follow Tribunal rules while under oath and remember to keep parties and witnesses in tribunal cases “quarantined” during any such adjournment. Employers should seek guidance on preparation for hearings including what to expect generally, how to deal with cases lasting a couple of days, lunchbreaks, travel arrangements and what rooms may be available to discuss sensitive matters.