Retrial at Employment Tribunal Ordered

The claimant, G, was employed as a sales executive. The defendant, D, was a projects manager. G claimed that D had sexually harassed her whilst at work. In March 2009 she resigned and in July brought a claim of sex harassment against both her employer and D. In October 2010, she received a letter which implied that she had made up the allegations and would suffer from it. In February 2011, she wrote to the employment tribunal, saying that she was afraid of attending a hearing and she requested an order that she should not be required to attend. The tribunal did not make that order, but instead informed her that she was not required to attend but that her absence might affect the weight to be attached to her evidence.

G did not attend the hearing although D did. The tribunal held that two events of sexual harassment had occurred. D appealed unsuccessfully to the Employment Appeals Tribunal, and then to the Court of Appeal. He contended that the tribunal had erred in assessing that it was fair for it to decide part of the claim against him by relying on the claimant's witness statements. He further contended that the tribunal had erred in not applying the principle that it was not fair to decide an employment tribunal case against a party who had not been allowed to cross-examine an opposing party's witness.

The appeal would be allowed by the Court of Appeal.

It was held that there had been a procedural error and an unusual situation had arisen as a result of G's decision not to give oral evidence. In the circumstances, the tribunal had made a procedural error in not first holding a pre-trial review for directions to consider the options available for the conduct of a fair and just substantive hearing in the light of the claimant's resolve not to attend or give oral evidence. The following questions ought to have been explored:

1. whether the tribunal had been satisfied by evidence that the claimant had grounds for and was fearful of attending the hearing
2. if so, whether the tribunal should have dispensed with an inter partes hearing;
3. if so, whether the tribunal should have held separate hearings at which the parties each gave their evidence in the absence of the other; and
4. if so, whether the parties should have been invited to submit to the tribunal in advance questions to be put to the other party at the hearing

The Case would be remitted for re-hearing

Nick Barnett

Published on 29/11/2013