The Court of Appeal has recently reviewed the circumstances in which intimidatory action by a party could result in the party being debarred from taking any further part in proceedings (Gainford Care Homes Ltd v Tipple and Roe  EWCA Civ 382).
The issue arose in the linked cases of Ms Tipple, a care assistant in a care home, and Mrs Roe, a regional manager. Ms Tipple claimed unfair dismissal and direct discrimination. Mrs Roe gave evidence in her support. This resulted in detrimental changes for Mrs Roe at work, so she resigned and claimed constructive dismissal and victimisation. On the first day of the hearing, Mrs Roe was spoken to by one manager in an attempt to get her to drop her support for Ms Tipple’s case. This was captured on CCTV. At the end of that day another manager drove past Mrs Roe on a zebra crossing at speed, close enough that she only escaped injury by quick movement out of the way. Video footage showed that this manager had sped out of the car park and driven the wrong way round a one way system, in order to reach the crossing in time. The near-miss was also witnessed by a security guard and magistrate who gave witness evidence of it.
The tribunal considered an application to strike out the employer’s responses to both Ms Tipple’s and Mrs Roe’s claims, and to bar it from taking any further part in the proceedings. They did so under rule 18(7) of the 2004 Tribunal Rules. The current equivalent is rule 37(a) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237). Both sets of rules refer to “scandalous” behaviour, and provide for striking out where 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).
The tribunal concluded that the intimidation so frightened the key witness that a fair trial, either of the merits, or of remedy, would no longer be possible, and therefore debarred Gainford Care Homes from taking any further part in the proceedings. This decision was upheld by the EAT and the Court of Appeal.
On appeal it was argued for Gainford Care Homes that other options, short of debarring them from further participation, should have been considered. They cited the measures taken to protect victims of sexual offences in criminal proceedings, as considered by the Court of Appeal in Duffy v George  IRLR 893. Due to the fact that the pleaded appeal was based on an allegation that the tribunal had failed to give adequate reasons, rather than being an appeal on the merits of the substantive decision, the alternative options for evidence to be given were not fully considered in the Gainford Care Homes appeals.
The Court of Appeal’s judgment in Gainford Care Homes focused on the adequacy of reasoning arguments, but the key tests as to whether to debar an intimidating party from further participation in the proceedings were referred to in more detail in HHJ Peter Clark’s decision in the EAT. Following Bloch v Chipman  IRLR 140 and Force One Utilities v Hatfield  IRLR 45, the tribunal must consider three questions before striking out because of intimidatory (scandalous) conduct:
- Has the conduct related to the manner of the proceedings?
- Did the conduct make it impossible to hold a fair trial?
- If so, was there some response short of barring the wrongdoing party which would be proportionate?
The Duffy v George options for changing the physical set up for cross examination and/or the identity of the cross examiner, are relevant to the third limb of the test.
If any steps short of strike out would not succeed in rendering a fair trial possible, then it would be proportionate to strike out the wrongdoer’s case. The authorities make clear that the fact that a party is still willing to attend the hearing does not mean that they are necessarily free from fear. Nor can it be assumed that removing the wrongdoing individual from having any role in the hearing would itself remove the risk that the innocent party’s fear might inhibit or influence their evidence to an extent that a fair trial is still not possible.
Where the fear of intimidation would also affect evidence in any remedy hearing, it is proportionate to debar the wrongdoing party from participating in the remedy hearing, as well as the liability hearing.
Debarring the wrongdoing party would not necessarily mean that the innocent party would win their case, because the tribunal would still have to hear the evidence and assess it.
It is rare for such compelling evidence of intimidation to come before a tribunal. However in our increasingly digitised world, the opportunities for capturing intimidation by text message or email, or on CCTV, also increase. Such evidence may provide a basis for strike out of either a claimant’s case or a respondent’s case (subject to consideration of whether a fair hearing may still be achieved by any other means). This may be particularly relevant where the claimant was dismissed for harassing or intimidating another worker, or where a collective response becomes violent or includes threats of violence.