Employment Law Speed Read – 23/04/18

Chidzoy v British Broadcasting Corporation

In Chidzoy v British Broadcasting Corporation, the Employment Appeal Tribunal (EAT) upheld the decision to strike out a Claimant’s claim, where she spoke to a journalist in a break between giving her evidence.

Background 

Ms Chidzoy (the Claimant), was a journalist who had worked for the BBC for 29 years. She brought claims of whistleblowing, sex discrimination, victimisation and harassment against the BBC.

A full merits hearing commenced at the Employment Tribunal (ET) on 6 February 2017. The Claimant began giving her evidence on 7 February 2017, and she was still undergoing cross-examination on 9 February 2017.

On at least six occasions, the ET warned the Claimant that whilst she was giving evidence, she must not discuss her evidence or any aspect of her case with anyone during breaks. On 9 February 2017, the ET called for a short break and gave the Claimant the requisite warning. However, during this break the Claimant was observed talking to another journalist and the words “dangerous dogs” and “Rottweiler” were overheard.

These words were of particular relevance as the Claimant had just been cross-examined about an email circulated by the BBC that referred to the Claimant as ‘Sally Shitsu’ and concerned the Dangerous Dogs Act. It was put to the Claimant that she would not have objected to being referred to as “Sally Terrier” or “Sally Rottweiler”.

When the hearing resumed, the BBC’s lawyer told the ET that the Claimant had been observed in discussions with a third party and recounted what had been overheard.

Consequently, the ET decided to adjourn the hearing to allow both parties to give a full account of what had happened, and to give the BBC an opportunity to consider making an application in respect of the Claimant’s alleged conduct.

Employment Tribunal 

At the resumed hearing the BBC made an application to strike out the claim. The ET considered both parties statements, and found that the Claimant had engaged in discussion with the journalist about her case. The ET then considered the application to strike out.

The ET found that the Claimant’s behaviour constituted unreasonable conduct and went on to examine whether a fair trial was still possible. The ET held that it was not, as their trust in the Claimant had been irreparably damaged.

The ET considered whether the claim could be listed before a different Tribunal, but due to the stage of proceedings this was deemed to be disproportionate.

Finally, the ET considered a partial strike out of the Claimant’s claim, however they failed to see how this would address their loss of trust in the Claimant.

The ET decided to strike out the Claimant’s claim in its entirety. The Claimant appealed this decision to the EAT.

Employment Appeal Tribunal 

The EAT dismissed the appeal.

It held that the ET had properly considered whether the Claimant’s conduct amounted to unreasonable conduct of the proceedings, whether a fair trial was still possible and if there were any alternatives to striking out the claim. The EAT put emphasis on the fact that the Claimant had been warned at least six times by the ET, and she could have reasonably been expected to understand the importance of complying with the instruction.

Comment 

This case comes as a stark reminder to all parties that when giving evidence they must not discuss the case, or their evidence with anyone and if they fail to do so, they could face their claims or response being struck out.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.