Considering witness evidence where the witness does not attend the Hearing

The Court of Appeal has recently and helpfully, given case management guidance on how the evidence of a witness in a sexual harassment claim who is too scared or frightened to attend an Employment Tribunal hearing, should be considered.

The Court of Appeal has recently and helpfully, given case management guidance on how the evidence of a witness in a sexual harassment claim who is too scared or frightened to attend an Employment Tribunal hearing, should be considered.

Such circumstances may arise where for example, when a claimant is too scared or frightened to be cross-examined by the alleged harasser, and refuses to attend the hearing.

In the recent case of Duffy v George, the alleged harasser was not given the opportunity to cross-examine the Claimant. It was held that the Tribunal, at the point when it was clear that the Claimant could not be cross-examined, should instead have held a case management discussion to determine how to deal with the issue.

The Court of Appeal referred to how Criminal courts approach such issues, considered how much weight should be given to written evidence where the witness is unable to attend the Hearing, and discussed how evidence is sometimes given by video-link, allowing a witness to give their evidence from a different physical location. They also said that only in exceptional circumstances, should a key witness in a sexual offences case present their evidence in writing.

It was decided that these issues could be equally applicable before an Employment Tribunal, and only after these considerations, would it be reasonable to then hold a substantive hearing. This is because Employment Tribunals are required to ensure that justice is delivered in all cases, which is particularly important where the strength of the parties’ evidence is crucial to determining the outcome.

In this case, Miss George complained of various acts of sexual harassment and after receiving a threatening letter from Mr George which warned her of the consequences of her apparent made up allegations, refused to attend the Hearing. The Tribunal confirmed to Miss George that her written evidence could be considered in her absence, albeit, the same weight would not be attached to it than had she appeared in person and been cross-examined.

The Tribunal found that Mr Duffy’s conduct did amount to sexual harassment in relation to the allegations which were admitted by him, but not the ones which were not, given that Miss George did not attend the Hearing. As her injury to feelings could not be assessed in her absence, Miss George was not awarded any compensation.

After Mr Duffy was unsuccessful with his appeal to the Employment Appeal Tribunal, the Court of Appeal upheld his appeal, and found that a “preliminary hearing” should have been held to address the Claimant’s concerns, and how they could be conveyed at a Hearing.

It was held that whilst a Tribunal could sometimes make a finding against a Respondent who has not had the opportunity to cross-examine the Claimant on their evidence, in this case, the Tribunal made a fundamental procedural error by not dealing with the issue more appropriately. The Tribunal should have considered how the Claimant could have given oral evidence without being cross-examined by the Respondent (who here, was unrepresented and would have cross-examined the Claimant himself), and how much weight should have been attributed to the Claimant’s witness evidence if she did not attend the hearing.