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Claimant who discussed evidence with a journalist under oath loses appeal

BY Gerry O'Hare
Employment Law & HR

A claimant whose employment tribunal claim was thrown out after she discussed her case with a journalist during the hearing has lost her appeal to have the claim reinstated. In Chidzoy v British Broadcasting Corporation UKEAT/0097/17, the Employment Appeal Tribunal (EAT) heard that Ms Chidzoy had disclosed details of the hearing to a journalist during an adjournment, at which time she was still under oath.

During the third day of Ms Chidzoy’s cross-examination the tribunal was adjourned and she was given clear instructions not to discuss her evidence or any aspect of the case with anyone during that adjournment. When the hearing resumed, counsel for the BBC advised the tribunal that, during the adjournment, the claimant had been seen in discussion with a journalist. The BBC applied to strike out the claim on the grounds that it was no longer possible to have a fair hearing in respect of the claim.

After hearing submissions from both sides, the employment tribunal struck out the claim. It found that Ms Chidzoy had discussed the case and her evidence with the journalist and that the way in which the proceedings had been conducted by her or on her behalf constituted unreasonable conduct. It was also determined that, given the circumstances, a fair trial before the tribunal was no longer possible as the tribunal’s trust in the claimant had been “irreparably damaged.” Finally, it was found that conducting the hearing from the beginning before a different tribunal would not be a proportionate response as Ms Chidzoy’s evidence was almost finished and a second tribunal hearing the case would be aware of the reasons for starting the hearing again, putting them in a difficult position.

Ms Chidzoy appealed, and the EAT upheld the decision of the tribunal. It found that the tribunal had been entitled to consider that the claimant’s conduct was unreasonable and that a fair trial of the case could no longer be conducted due to the breakdown in trust. Having considered potential alternatives, the tribunal correctly concluded that it was proportionate to strike out the claim.

This case is an important reminder of the fundamental importance of parties not discussing evidence or the case during adjournments while under oath. The potential repercussions of disregarding the clear instructions given by the tribunal should not be underestimated.

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