Duffy v George  EWCA Civ 908
Appeal against the EAT’s decision that an ET does not necessarily err in law if it proceeds with a hearing and makes findings adverse to a respondent where a claimant does not attend and so is unavailable for cross examination. Appeal allowed and remitted for a complete re-hearing before a different Tribunal.
The claimant complained to the Employment Tribunal that she was sexually harassed by the respondent in their work place. The respondent accepted that there was between them sexualised language and behaviour but his case was that it did not constitute sexual harassment by him of the claimant. He was acting in person. He wished to cross-examine the claimant upon the circumstantial detail of the allegations she made with a view to demonstrating that, far from being a victim of sexual harassment, she was a willing and enthusiastic participant. Before the Hearing the respondent sent to the claimant a message with which he enclosed a horoscope implying that the claimant had made up her allegations and would suffer for it. The claimant sought from the Tribunal a direction that she need not attend to give evidence. No such direction was given but the claimant was informed that her written evidence would be admitted. At the Hearing the Tribunal found two allegations proved: that the respondent sent to the claimant sexualised text messages and that on Valentine's Day he had presented her with a vibrator. The Tribunal found that, objectively viewed, the respondent's admitted behaviour constituted sexual harassment. The respondent appealed to the EAT. The EAT pointed out that it was not concerned with the ET's findings and reasoning for its substantive conclusion, but only with the alleged procedural error in disposing of the case in the way that it did. It held that the ET was not bound to dismiss the case because the claimant did not attend the hearing and was not available for cross examination. It concluded that an ET does not necessarily err in law if it proceeds with a hearing and makes findings adverse to a respondent where a claimant does not attend and so is unavailable for cross examination.
The Court of Appeal allowed the appeal. The ET had made a procedural error in not first holding a pre-trial review for directions to consider the options available under the ET Rules for the conduct of a fair and just substantive hearing in the light of the claimant's resolve not to attend to give oral evidence. The case was remitted to a fresh Tribunal for a complete re-hearing.
Case No: A2/2012/2926
Neutral Citation Number:  EWCA Civ 908
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE MUMMERY
LORD JUSTICE PATTEN
LORD JUSTICE PITCHFORD
- - - - - - - - - - - - - - - - - - - - -
MICHAEL DUFFY (Appellant)
- and -
SUSANNAH GEORGE (Respondent)
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
MR THOMAS GIBSON (instructed by the Free Representation Unit) for the Appellant
The Respondent did not appear and was not represented
Hearing date : 15th May 2013
- - - - - - - - - - - - - - - - - - - - -
Lord Justice Mummery:
- This appeal raises a legal question about the procedure followed by the Employment Tribunal (the ET) in a sex harassment case. A potential procedural problem arose as soon as the claimant asked the ET to make an order that she should not to be required to attend the hearing of her claim. The ET declined to make any order. Instead, it informed her that she was not required to attend, and added that her absence might affect the weight to be attached to her evidence.
- The hearing then took place in the claimant's absence. The ET upheld her claim for two specific acts of alleged sex harassment against the appellant. He gave evidence to the ET admitting that those two acts had taken place, but denying that, in all the circumstances, either of those acts amounted to sex harassment. He also denied that other alleged acts of harassment had taken place or that the alleged acts amounted to sex harassment and those claims were dismissed.
- The ET sent its judgment to the parties on 10 March 2011. The appellant brought an unsuccessful appeal in the Employment Appeal Tribunal (the EAT) in respect of the finding of harassment in the two incidents admitted. This appeal is from the order of the EAT dated 19 October 2012. The EAT concluded that no question of law arose from the proceedings or judgment of the ET. There was no cross appeal against the dismissal of the rest of the harassment claims.
- On 18 December 2012 Rimer LJ granted permission to appeal to this court. While pointing out that success on the appeal was far from certain, he expressed concern about a "real question" as to the fairness of the procedure adopted in the ET at a hearing unattended by the claimant. Although the ET had dismissed all the other allegations of sex harassment made by her against the appellant and denied by him, the ET went on to find that the two acts admitted by him constituted sex harassment. As the claimant had decided not to go to the hearing of her case, the appellant had suffered a disadvantage: he had been denied the opportunity to put his case to her and to cross examine her on her allegations. His overall defence, as summarised in the words of Rimer LJ, was that none of the acts alleged were "unwanted": they were "simply part of the pattern of mutual banter in which the parties customarily engaged."
- Under s. 4A of the Sex Discrimination Act 1975, as amended, a woman is subjected to harassment if the man engages in any form of "unwanted" verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating her dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
- Rimer LJ noted that the appellant had not helped himself by omitting to ask the ET for written reasons for its judgment against him. That difficulty has been overcome, at least in part, by written answers given by the Employment Judge to various questions submitted by the EAT prior to the hearing of that appeal.
- The claimant was employed by Taylor Wimpey Homes as a sales executive and the appellant as a projects manager.
- The claimant alleged that in February 2009 the appellant sexually harassed her by two unwanted acts: giving her a vibrator as a Valentine's present and sending her sexy text messages. The appellant denied that the acts were unwanted; they occurred in the course of banter between them in which "she gave as good as she got." She had sent sex messages to him and when she received the Valentine's present she "handled it and smelt it and looked through the leaflet to see what batteries were required."
- On 1 March 2009 the claimant resigned. Shortly afterwards the appellant was dismissed.
- On 30 July 2009 the claimant presented a claim of sex harassment to the ET against Taylor Wimpey Homes and the appellant. She was represented by a solicitor. She made a detailed witness statement with a later addendum. The appellant acted in person.
- The hearing was listed for 18-22 October 2010. Shortly before the hearing the claim against Taylor Wimpey Homes was settled. The hearing of the claim against the appellant was adjourned at the request of the claimant's solicitor and re-listed for 23 February 2011.
- On 20 October 2010 the claimant received a letter from the appellant enclosing a copy of her horoscope with a comment implying that she had made up the allegations and would suffer for it.
- On 17 February 2011 the claimant's solicitors wrote to the ET stating that she was "scared of attending a Hearing" and requested an order that she should not be required to attend. The appellant wrote to the claimant's solicitors and to the ET saying that he did not agree to her not attending. On 21 February the ET wrote explaining that the claimant was under no obligation to attend, that her case could be considered entirely upon the written evidence and documentation she wished to rely on, adding that "the degree of weight that can be attached to a written statement will not be as great [as] if she had been subjected to cross examination." That had to be balanced against the fact that it seemed that the appellant was not to give any evidence at all. The ET did not grant the orders requested, as they were not required, pointing out that it was a matter for the claimant's solicitor how she wished to conduct her case. The ET also responded to the appellant's letter saying that it was up to the claimant if she appeared or not, although her absence would not assist the Employment Judge.
- The hearing took place on 23 February 2011. The appellant attended. The claimant and her solicitor did not. The ET, consisting of the Employment Judge and two lay members, dismissed all the claims, save for the two admitted incidents where they found sexual harassment.
- There is no full written ET judgment, as the appellant did not request written reasons at the hearing. The ET simply held that "In the absence of the Claimant attending to give oral evidence and to allow the Respondent to cross examine the Claimant on the other serious allegations she makes, those claims are not well founded."
- The ET found that the harassment claims in respect of the two admitted incidents were well founded. No award of compensation was made in the absence of any medical evidence to assess the Claimant's injury to feelings, the claimant having in any event settled with Taylor Wimpey Homes.
- In answer to questions put by the EAT in an order dated 14 October 2011 the Employment Judge referred to the correspondence between the ET and the parties before the hearing and to the oral evidence given by the appellant at the hearing for about 20 minutes about the specific incidents and the "banter on the site." After discussion the ET reached the view that there were unsolicited text messages of a sexual nature and that, on an objective assessment, his conduct amounted to sexual harassment. It was then explained that, in the absence of the claimant to give evidence and thus allow the appellant to cross examine her on other serious allegations that she had made, those claims were not well founded and were thus dismissed. It was noted that the appellant continued to assert that he had in some way been "set up" and that his behaviour was not sexual harassment. In total the case had lasted well over an hour.
- In a full and careful judgment the EAT considered the factual background, the ET proceedings, the Employment Tribunal Rules of Procedure, in particular Rules 14 and 27, and the case of McBride v. British Railways Board & Ors  ITR 84.
- The EAT pointed out correctly that it was not concerned with the ET's findings and reasoning for its substantive conclusion, but only with the alleged procedural error in disposing of the case in the way that it did. It held that the ET was not bound to dismiss the case because the claimant did not attend the hearing and was not available for cross examination. It concluded that an ET does not necessarily err in law if it proceeds with a hearing and makes findings adverse to a respondent where a claimant does not attend and so is unavailable for cross examination.
- The rules were wide enough to permit the ET to admit evidence, even though the maker of a statement was not available for cross examination. The test was one of fairness, as illustrated by the case of Mc Bride where an employee had not been permitted by the ET to put questions to a witness called by an employer. That was unfair, whereas in this case the course taken by the ET was "not obviously unfair" and there was "ample material on which the Tribunal could reach the conclusion that the conduct [the two specified instances] was unwanted." The EAT described the appellant as having made "significant admissions" about those incidents and the message sent with the copy of the claimant's horoscope.
- Reference was also made to the Civil Procedure Rules allowing the court to receive evidence where a witness does not attend, such as where the witness is frightened or distressed by the conduct of the other party. The absence of cross examination did not affect admissibility, though it might go to the weight of the evidence.
- The procedural powers of the ET under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 confer an extremely wide discretion to deal with cases before it.
- The following procedural provisions are particularly relevant to the conduct of this case in the ET and to the disposal of this appeal.
(1) The overriding objective of the Regulations and the rules is dealing with cases justly. That includes, so far as practicable, ensuring that the parties are on an equal footing and ensuring that the case is dealt with fairly: Regulation 3 (1) and (2) (a) and (c).
(2) As part of the general power to manage proceedings, the Employment Judge may at any time, either on the application of a party, or on his own initiative, make an order in relation to any matter which appears to him to be appropriate. Such orders may be issued as a result of the Employment Judge considering the papers before him in the absence of the parties, or at a hearing: rule 10(1).
(3) Examples of orders that may be made under r 10(1) are orders as to the manner in which the proceedings are to be conducted ((a)); requiring the attendance of any person in Great Britain to give evidence or to produce documents or information (c)); requiring the provision of written answers to questions put by the tribunal or Employment Judge ((f)); and requiring that part of the proceedings be dealt with separately (i).
(4) The Employment Judge may act on his own initiative, with or without hearing the parties. or giving them an opportunity to make written or oral representations: rule 12.
(5) As for hearings, the Employment Judge shall, so far as it appears appropriate to do so, seek to avoid formality in his or its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts: rule 14(2). The Employment Judge or the tribunal shall make such enquiries of persons appearing before him or it and of the witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings: rule 14(3).
(6) In any proceedings there may be more than one hearing and there may be different categories of hearing, such as a hearing on liability, remedies, costs or preparation time: 26(1). At the hearing a party shall be entitled to call witnesses, to question witnesses and to address the tribunal: rule 27(1).
(7) If a party fails to attend or to be represented (for the purpose of conducting the party's case at the hearing) at the time and place fixed for the hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date: rule 27(5). If the tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph 27(5) it shall first consider any information in its possession which has been made available to it by the parties: rule 27(6).
- Proper steps must be taken to deliver procedural justice in all cases, especially those where (a) the case turns on the credibility of the evidence given by the parties; (b) the only direct evidence is the word of one party against the word of the other; (c) the party making the allegations decides not to attend the hearing; and (d) the party against whom the allegations are made is denied the opportunity to challenge them by cross examining the accuser. As for the last point, lack of the opportunity to cross examine a witness in the ET has been recognised as a ground for remission of a case for re-hearing: different facts may come out of a cross examination, which might have been accepted by the tribunal and have led it to reach a different conclusion: McBride v. British Railways Board (1972) 7 ITR 84. The case for remission is even stronger where there are no other witnesses and no other evidence and the opportunity to cross examine on the allegations has been denied.
- Appeal tribunals and appeal courts must recognise that, in the first instance, procedural matters are for the ET to decide. Provided that an ET exercises it discretion judicially by considering whether and how to exercise it and by taking all relevant circumstances into account, there will be no error of law. Neither the EAT nor this court would be entitled to interfere with the decision of the ET in the absence of an error of legal principle or unless the exercise of discretion was plainly wrong.
- The court is indebted to the Free Representation Unit and to Mr Gibson for the valuable pro bono input on the appellant's behalf.
- Mr Gibson framed the question that the court would have to answer as follows:-
"Is it possible, as an individual respondent, to lose a heavily-disputed, fact-sensitive sexual harassment employment tribunal case when (i) you deny all the allegations against you and (ii) the claimant (who bears the burden of proof) does not attend the employment tribunal hearing, so that they cannot give oral evidence or be cross examined?"
- He described the difficulties of the appellant's position. He said that, whereas the claimant had a choice about commencing her claim, about continuing with it after Taylor Wimpey Homes had settled its part of the case, and about whether to attend the hearing or not, the appellant had no choice about his involvement in the proceedings. If he did not attend the hearing he would be faced with a judgment against him with potentially disastrous consequences. He had denied the claims against him. Unlike the claimant, he did not have the benefit of legal representation. Most serious of all he never had the opportunity to test the evidence against him by cross examination of his accuser. Without that it was wrong for the Employment Judge to say that there was ample material to support their conclusion that part of the conduct complained of (the two specific incidents) was unwanted. If the material had been considered in a fair and balanced way the ET would not have been entitled to make any findings against him at that hearing.
- Mr Gibson's primary submission was this court should simply allow the appeal and dismiss the claims against the appellant. The basis of that submission was that the ET made an error of law in assessing that it was fair for it to decide part of the claim against the appellant by relying on the claimant's witness statements. The burden of proof was on the claimant. In the absence of an opportunity to test the material parts of her evidence by cross examination the ET ought to have dismissed her claim. Instead, it erred in law by going on to find that the case was established against the appellant. It did so on the basis of her untested written evidence and the appellant's oral evidence. The EAT erred in law in upholding the ET's decision.
- Mr Gibson also submitted that the ET erred in law in failing to apply the principle in McBride that it is not fair to decide an ET case against a party who has not been allowed to cross examine an opposing party's witness on a material issue. The EAT wrongly distinguished it as dealing with quite a different problem. The essential similarity between the cases was that both involved a party being denied the right to cross examine a key witness on a material issue. The overriding objective is to deal with cases justly. That and Article 6 of the European Convention on Human Rights gave the appellant had the right to test the evidence against him.
- If correct, the judgments of the ET and the EAT in this case had worrying implications for anyone accused of sex harassment. The accused must attend the hearing if the case is to go by default, yet be faced with the prospect of losing the case to a claimant whose witness statement makes a better impression on the ET than the oral evidence might when scrutinised. The burden of proof on the claimant is discharged without having to attend a hearing. The judgments could mark the end of claimants having to give oral evidence to prove an allegation of sex harassment.
- Mr Gibson did not contend that the ET letter of 21 February 2011 to the claimant's solicitor contained any legal misdirection or error. However, he drew our attention to the passage in Harvey on Industrial Relations and Employment Law (paragraph 829.01) that, if a claimant indicates that he does not intend to appear, the ET will generally dismiss the case and award costs. The ET took the wrong approach in law in concluding, in the absence of the claimant, that, although she had failed to proved one part of her sex harassment case against the appellant, she had proved the other part in circumstances where throughout the defence of the appellant was that of sex banter between them.
- The claimant did not attend the hearing and was not represented. She filed a respondent's notice relying on the grounds in the judgments of the ET and the EAT and those drafted by her then solicitor in the EAT.
- She explained how she had instructed her solicitor to seek confirmation as to whether or not she had to attend the hearing in the ET and understood that she did not have to attend and that she was excused from the hearing. She had acted under the guidance of the ET and took no further part in the proceedings in the ET. She is therefore unable to comment on the appellant's grounds and has no further documents.
- She added this:-
"I remain upset, traumatised and concerned with the Appellant's continued efforts to prolong the proceedings and cause me further distress and intimidation. I remain out of employment and unable to afford legal representation to respond any further to the Appellant's further appeal. My health continues to be affected as a result of matters relating to the original proceedings and now the Appellant's subsequent appeals. I remain on the same course of medication which I was prescribed when my employment …ended to help treat my condition."
- In a skeleton argument dated 12 February 2013 the claimant asked this court to uphold the judgments of the ET and the EAT and emphasised the following further points:-
(1) She settled her claim against the employer.
(2) She felt unable to attend the hearing due to ongoing illness caused by the appellant's actions during her employment and to which her claim related.
(3) She understood that the appellant was a litigant in person and she was traumatised and frightened at the thought of having to be in the same room with him and being cross examined by him.
(4) She instructed her solicitor to seek confirmation that she was not required to attend the hearing and that was confirmed in February 2011, as was the fact that her claim could be considered entirely upon written evidence and the documentation relied on.
Discussion and conclusions
- In my judgment, Mr Gibson put the case for the appellant too high. There may be circumstances in which, with procedural adjustments to ensure that the hearing is a fair one, it is legally permissible for an ET to reach a decision against a party who has not had the opportunity to cross examine the other party.
- If there was an error of law in this case it was a procedural one. An unusual situation arose as a result of the claimant's decision not to attend to give oral evidence, because she said she was scared of attending a hearing and being subjected to cross examination by the appellant in person. She therefore wanted the ET to consider her written evidence.
- Faced with a difficult decision the ET received only limited assistance from the parties: the appellant was not legally represented and the only suggestion made by the claimant's solicitor was that the claimant should be excused from attending. The ET refused to excuse her from attending, but then held a hearing at which it heard evidence from only the appellant, who had opposed the claimant's application and made it clear that he had questions to put to the claimant in cross examination.
- The downside of the procedure in fact followed by the ET becomes evident when considering the outcome of the hearing that took place. The ET accepted the appellant's denial that some of the alleged acts took place at all and dismissed those claims, as the claimant had not attended to give oral evidence; but the ET did not accept his evidence in support of his overall defence throughout that there was no harassment of Ms George because, in his words, of the banter between them and his evidence that "she gave as good as she got." That defence would apply to all the acts he alleged, whether or not he admitted them.
- In those circumstances I have reached the conclusion that the ET made a procedural error in not first holding a pre-trial review for directions to consider the options available under the ET Rules for the conduct of a fair and just substantive hearing in the light of the claimant's resolve not to attend to give oral evidence.
- The ET needed to explore with the parties, either separately or together, a number of procedural points and possibilities:-
(1) Was the ET satisfied by evidence that the claimant had grounds for and was fearful of attending the inter partes hearing to be cross examined by the appellant?
(2) If so, should the ET should dispense with an inter partes hearing ?
(3) If so, whether the ET should hold separate hearings at which they each gave their evidence to the ET in the absence of the other?
(4) If so, whether the parties should be invited to submit to the ET in advance questions for the ET to put to the other party at the separate hearing?
- In the light of any representations made the ET would be in a position to give directions about the conduct of the case in a manner which the ET considered would best achieve the overriding objective in accordance with the ET Rules.
- I have read in draft the judgment of Pitchford LJ and agree with the reasons which he gives for remitting this matter for rehearing by an ET in accordance with directions giving a pre-hearing meeting. At that meeting the ET can consider the procedural matters indicated in the light of the judgments of this court.
- I would allow the appeal and remit the case for re-hearing by a different ET in accordance with the law as laid down in the judgments of this court.
Lord Justice Patten:
- I agree.
Lord Justice Pitchford:
- I agree, for the reasons given by my Lord, Mummery LJ, that the appeal should be allowed and the matter remitted for re-hearing before a differently constituted Employment Tribunal. Were it not for the difficult case management problems which may confront judges in the Employment Tribunal in cases involving allegations of sexual harassment in the work place, I would not have provided a judgment of my own.
- For ease of reference I shall refer to Ms George as the claimant and Mr Duffy as the respondent. The claimant complained to the Employment Tribunal that she was sexually harassed by the respondent in their work place. The respondent accepted that there was between them sexualised language and behaviour but his case was that it did not constitute sexual harassment by him of the claimant. He was acting in person. He wished to cross-examine the claimant upon the circumstantial detail of the allegations she made with a view to demonstrating that, far from being a victim of sexual harassment, she was a willing and enthusiastic participant. Before the Hearing the respondent sent to the claimant a message with which he enclosed a horoscope implying that the claimant had made up her allegations and would suffer for it. The claimant sought from the Tribunal a direction that she need not attend to give evidence. No such direction was given but the claimant was informed that her written evidence would be admitted. At the Hearing the Tribunal found two allegations proved: that the respondent sent to the claimant sexualised text messages and that on Valentine's Day he had presented her with a vibrator. The Tribunal found that, objectively viewed, the respondent's admitted behaviour constituted sexual harassment.
- Mr Gibson argues that the proceedings before Tribunal went wrong procedurally and substantively: procedurally, because the claimant was informed that she need not attend the Hearing and her written evidence would, nevertheless, be considered; substantively, because there was no logical reason why the Tribunal should have declined to find proved any incidents of sexual language or behaviour not specifically admitted by the respondent, yet find proved, in the face of the respondent's denial, that the admitted incidents constituted sexual harassment. The purpose of this judgment is to consider how the Tribunal might have approached the application made by the claimant for a direction under rule 10 that she need not attend the Hearing.
- My purpose is to draw attention to the fact that courts with criminal jurisdiction have for some years been used to the management of cases in which the complainant in a trial of a sexual offence is a reluctant, frightened or intimidated witness. In a Crown Court trial the burden is upon the prosecution to prove its case so that the jury is sure of guilt and the overriding objective is to deal with the case "justly", which includes "dealing with the prosecution and the defence "fairly" and "respecting the interests of witnesses [and] victims" (Criminal Procedure Rules 2011 (SI 2011 No. 1709) as amended, rule 1.1(2)(b) and (d)). In the Employment Tribunal the claimant must prove her case on the balance of probabilities. The overriding objective is to deal with cases "justly" which includes "ensuring that the parties are on an equal footing" and "ensuring that [the case] is dealt with expeditiously and fairly" (Employment Tribunals (Constitution and Rules of procedure) Regulations 2004 (SI 2004 No. 1861) as amended, regulation 3(2)(a) and (c)).
- It is a cornerstone of the common law concept of natural justice that the accused must be given the opportunity to face his accuser. In the overwhelming majority of cases the complainant will give oral evidence and be cross-examined by or on behalf of the opposite party. There are two essential purposes of cross-examination, the first being to test the evidence of the witness, and the second being to provide the witness with an opportunity to respond to the case put to the witness on behalf of the opposite party. By this means the tribunal of fact is the better able to reach a judgement as to the reliability and effect of the complainant's evidence. The criminal trial is equipped to deal with the receipt of oral evidence from anxious, frightened and intimidated witnesses. However, there are exceptional circumstances in which the judge in a criminal trial will contemplate the admission of evidence, even from the complainant, other than by way of oral testimony. The following describes some of the provisions which apply to a criminal trial and may be relevant to the exercise of case management powers by an employment tribunal in parallel circumstances.
- By section 34 Youth Justice and Criminal Evidence Act 1999 a person charged with a sexual offence may not in any criminal proceedings cross-examine in person the complainant in connection with either the alleged offence or any other offence of which he is charged in the same proceedings. In a criminal trial the defendant will be provided with a legal representation order; questions asked of the complainant will be put by a qualified advocate on his behalf. The rationale for the statutory prohibition is that, on the assumption that the allegation is true, it is unreasonable to subject the victim of a sexual offence to cross-examination by the perpetrator of the offence; it would be tantamount to requiring the victim to relive the experience of the offence itself. A civil court owes a common law duty of fairness to witnesses who give evidence before it. If a witness is justifiably frightened to give evidence by reason of circumstances personal to that witness, the court will need to consider whether and how its procedure may be adapted to make the process of taking evidence fair to the witness (In re Officer L ** 1 WLR 2135 (HL) per Lord Carswell at paragraph 20). Mr Gibson does not dispute that among the wide powers available to an employment tribunal under rule 10 Employment Tribunal Rules of Procedure (general power to manage proceedings) is, in an appropriate case, the power to prohibit cross examination by the respondent personally of a claimant whose evidence is that she was sexually harassed by the respondent in the work place.
- Part II of the Youth Justice and Criminal Evidence Act 1999 also provides a statutory code of special measures to assist the receipt of evidence from children and other "vulnerable" witnesses. Those who are vulnerable include witnesses the quality of whose evidence is likely to be diminished through fear or distress at the prospect of giving evidence. Complainants of sexual offences are automatically eligible unless they inform the court that no such measures are needed (section 17(4)). Special measures available include the use of screens to prevent a line of sight between the witness and the defendant, the admission of a video recording of the witness's evidence-in-chief and the use of live-link between the courtroom and the witness in another part of the building or in a separate building. The use of one or more of these measures usually ensures that the witness is able to give oral testimony.
- In a criminal trial it may not be essential that the complainant gives oral evidence. In Coates [2007 EWCA Crim 1471, Judge LJ (as he then was) pointed out that a conviction for rape may follow the admission of the complainant's hearsay statements when the complainant is absent through justified fear of serious repercussions if she were to give evidence. Under section 116 Criminal Justice Act 2003 first hand hearsay evidence may be admitted when the witness is absent through fear (section 116(2)(e)) and the court considers that the statement ought to be admitted in the interests of justice (section 116(4). "Fear" is to be widely construed (section 116(3)). The matters to which the court must have regard in deciding whether to admit the statement in the interests of justice include the contents of the statement, any risk of unfairness to another party (in particular, how difficult it will be for that party to challenge the statement), and whether special measures would resolve the witness's fear of giving evidence. It is the experience of the criminal courts that only in exceptional circumstances will the evidence of the principal witness for the prosecution in support of a charge of a sexual offence be received in writing and, even then, only when there are sufficient compensating safeguards in place to ensure that the jury may safely be left to assess it. There are two principal safeguards which may be available to the court: (i) the existence of other witnesses who can speak as to the truth or otherwise of the statement and (ii) the ability of the judge to direct the jury as to the disadvantage created for the defendant by the admission of the evidence without the right to cross-examine the witness and the need to exercise caution before acting upon the complainant's unchallenged hearsay statement.
- The statutory approach to the admission of hearsay evidence in a criminal trial is founded upon the need to do justice. The concept of doing justice involves, as the overriding objective anticipates, the interests of both the prosecution and the defence.
- It seems to me that the principles upon which the criminal courts act to do justice may be of equal importance to the duty of achieving justice in the civil jurisdiction, including the jurisdiction of the Employment Tribunal, where the investigation of allegations of sexual misconduct is taking place. The parties have an equal right of access to justice. In the course of argument Mr Gibson observed that the claimant had a choice whether to pursue her claim, while the respondent had no effective alternative but to resist it. In my opinion Mr Gibson's observation fails to give due weight to the principle that both parties can expect access to the Tribunal. It would be quite wrong for the Tribunal to impose unreasonable conditions upon the receipt of a claimant's evidence which, unless accepted, would disqualify the claimant from access to a decision. It seems to me that the claimant raised in her application to the Tribunal important matters which required mature consideration after receiving evidence and argument. Having regard to the importance of the outcome to both parties it was desirable that the claimant should give oral evidence if possible; if, however, the claimant was unwilling to give oral evidence in any circumstances it was important that she was made aware of the issues to which her absence from the Tribunal would be relevant.
- The solicitors acting for the claimant wrote to the Employment Tribunal on 17 February 2011 pointing out that the respondent/appellant was acting in person. They informed the Tribunal that she was "scared" of attending a Hearing and being cross-examined by the respondent in person. In his response to the claimant's application to the Tribunal the respondent had stated that he wanted "her to look me in the eye". He listed several questions which he wished to put to the claimant in evidence. The solicitors said that the claimant was still affected by the respondent's conduct. She had recently taken an overdose and continued to show physical signs of anxiety and panic "as a result of contemplating having any contact with the Respondent". It was submitted that it would be detrimental to the claimant's health were she to attend the hearing. The Tribunal was asked to direct that the claimant's responses to the respondent's questions should be given in writing under the Tribunal's rule 10 management powers. On 19 October 2010 the respondent had written to the claimant enclosing a newspaper horoscope for her star sign. In it the reader was told that she may want to come clean about a matter but she feared that if she did her confession would be used against her – "you are right to suspect there is trouble in store". The respondent wrote, "How very appropriate", but did not sign the message. The claimant's solicitors wrote that the claimant saw this action as further intimidation of her.
- The respondent wrote to the Tribunal saying that he did not agree to the solicitors' proposal.
- The order requested was not granted but in a letter of 21 February 2011 Employment Judge Pritchard-Witts directed that the claimant's case could be considered entirely upon the written evidence and documentation submitted. However, if she did not attend the weight of her written evidence would be affected. It seems to have been the understanding of the Tribunal at that stage that the respondent would not himself be attending to give evidence. The Tribunal wrote to the respondent on 22 February 2011 saying only that it was "up to the claimant whether she appears or not; although her absence will not assist the Employment Judge who would, no doubt, welcome her attendance".
- It was clear to the Tribunal that the claimant was not abandoning her claim against the respondent. She wished the Tribunal to consider her written evidence both as to the language and behaviour alleged between September 2008 and the date of the alleged sexual harassment, and as to her response to the respondent's case that she was a willing participant in those acts. In the event that a party to the claim failed to attend the Hearing, rule 27(5) provided the Tribunal with the power to "dismiss or dispose of the proceedings in the absence of that party or...adjourn the Hearing to a later date".
- The claimant had raised an important issue as to her reason for not wishing to be present at the hearing, namely that if she did attend she would be subjected to cross-examination by the respondent himself. It was an important issue because it affected the fairness of the proceedings to both the claimant and the respondent. If she attended the Hearing the claimant would have to confront the respondent. Subject to the power to dismiss under rule 27(5), the claimant was entitled to have her evidence considered by the Tribunal but in her absence her evidence was likely to be afforded less weight. If the Tribunal agreed to proceed in the absence of the claimant, the respondent's case could not be put to the claimant in person and it would not be tested. It seems to me, with respect to the Tribunal, that it was inappropriate to deal with the claimant's request without further exploration of two issues: first, assuming the Tribunal concluded that the claimant's fear was genuine, the means by which the claimant could give oral (and, therefore, better) evidence without being subjected to cross-examination by the respondent in person and, second, the status which would be afforded to the claimant's written evidence if she did not attend the Hearing. The Tribunal has ample powers under rule 18 to conduct pre-hearing reviews to determine any interim or preliminary matter relating to the proceedings (rule 18(2)(a)), to issue any order under rule 10 or anything else which may be done at a case management discussion (rule 18(2)(b)) and for that purpose to consider any written or oral representations or evidence (rule 18(2)(d)). It may be that, for a reason unavailable to us, the Tribunal had good reason to think that the respondent would not himself attend the Hearing, in which case the decision would be made on the written evidence from both parties. However, the very reason for the claimant's application was that she feared she would be cross-examined by the respondent in person. If he was not going to attend there was no reason for the claimant herself to be absent.
- It seems to me that all these issues required exploration at a pre-trial hearing. At that hearing it would not have been essential, at least in the first instance, that both parties should be present on the same occasion. The Tribunal needed to assess the strength of the claimant's resolve not to attend even if appropriate measures were taken to reduce her fears of giving oral evidence. One possibility to be considered was whether the claimant was prepared to answer questions from the Tribunal rather than from the respondent in person; a second was whether she would be reassured by giving evidence with the use of screens. Before making any order the Tribunal would need to provide the respondent with the opportunity to make representations as to any measures proposed. These enquiries would have resulted either in the attendance of the claimant at the Hearing or the further need to consider whether her written evidence should be received at the Hearing. Upon this latter subject also the respondent was entitled to make representations before any decision was made.
- The Employment Tribunal clearly has power to receive written evidence "so far as it is appropriate to do so" (rule 14(2)). It seems to me beyond argument that if the Tribunal had found that the claimant was genuinely fearful of attending the Hearing, and would not do so, it was open to the Tribunal to receive her evidence in writing. It would also have been open to the Tribunal to invite the respondent to submit questions which the claimant could answer in writing. I do not accept Mr Gibson's submission that the issues raised by the present case should not under any circumstances have resulted in a decision favourable to the claimant unless she attended to give oral evidence. Had it been the decision of the Tribunal, after full argument, to admit the claimant's written evidence including any written response to the allegation that she consented to sexualised language and behaviour, the Tribunal would, in my opinion, have been at liberty to prefer her written evidence to the oral evidence of the respondent on all and any disputed issues, provided that it had well in mind the factors relevant to reliability to which I have drawn attention, and that it reached a properly reasoned decision. The weight to be given to the written evidence was, of course, a matter for the Tribunal having considered all of the evidence, including the oral and written evidence of the respondent.
Published: 24/07/2013 12:04