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What happens if a witness discusses employment tribunal proceedings when under oath?
10 April 2018

In employment tribunal proceedings, witnesses are often told that they are under oath and are not able to discuss the case while they are still in the process of giving evidence. A recent case has demonstrated just how important it is to follow this instruction.

What happened?

BBC journalist Sally Chidzoy brought claims for whistleblowing, sex discrimination, victimisation and harassment and was attending the hearing for this case when the issue arose. 

The latest session of Ms Chidzoy’s evidence involved discussing a nickname that she had been given by a colleague: “Sally Shih Tzu”. The arguments had been raised over whether she would have been as offended if she was compared to a “Terrier” or a “Rottweiler” instead as these dogs had a more positive connotation of a reporter hunting down a lead.

As proceedings approached a break, Ms Chidzoy was advised that she was under oath and told not to discuss the case with anyone until she had finished giving all of her evidence.

During this interval, a journalist was overheard mentioning to Ms Chidzoy that she had been referred to as a “Rottweiler” in the past. It is not clear whether Ms Chidzoy responded to this comment but this was reported to the tribunal who decided that Ms Chidzoy’s behaviour amounted to unreasonable conduct which prejudiced her case. They, therefore, struck out her claims.

Why did they strike out the claim?

The fact that the word “Rottweiler” was used in the conversation suggested that Ms Chidzoy and the journalist had discussed the case as this clearly related to the evidence provided in the earlier session. This was in direct contravention to their instructions not to discuss the case before they went to the break so Ms Chidzoy had unreasonably prejudiced her case.

They considered whether a sanction short of striking out the case could be used instead but held that it would not be possible to as the damage had been done here.

What can witnesses learn from this?

Sally Chidzoy was the claimant in her case. However, the advice applies equally for witnesses for the respondent. If they discuss the case while under oath, then their evidence may not be relied on, which could result in the respondent losing that point (or even the entire case).

Witnesses are called to give their recollection of events rather than anyone else’s. If a witness discusses the case in the middle of giving evidence then there is a clear risk that their later recollection may be tainted by other parties’ influences.

Some cases require a lot of witnesses and hearings often need to be adjourned for lunch or at the end of a day with a witness in the middle of giving their evidence. Travel or lunch arrangements can often put witnesses in a position where the other side might argue that a witness has been influenced in the middle of their evidence if they sit with their colleagues.

The simplest thing to do if you are a witness in this position is to separate yourself from others who have attended the case. Have lunch alone or meet up with people who are not linked to the case.
When travelling to or from the hearing if still under oath, public transport will be best as there is likely to be CCTV which can be used to demonstrate that you did not make contact with another party to discuss the case.

These measures are not always possible if you have to work in between giving evidence or if you live with your colleagues but what you absolutely must not do is to discuss the case with others until you have finished giving evidence. 

Social awkwardness for a short period is a small price compared to the cost of having your case struck out or your evidence disregarded!

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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