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Council cannot rely on judicial proceedings immunity

Allegation of 'undue pressure' on witness in discrimination claim can go ahead

29 July 2013

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A council cannot rely on judicial proceedings immunity to prevent a former primary school headteacher from accusing it of putting undue pressure on a witness in a discrimination dispute, the Court of Appeal has ruled.

"The nub of the complaint is that the council has done something calculated to destroy or damage the trust and confidence that is inherent in an employment relationship," Lord Justice Lewison said.

"If an employer, to the knowledge of an employee, is prepared to use underhand and improper means to defeat a claim of discrimination brought against it by the employee, that is destructive of the requisite trust and confidence whether or not the employer succeeds."

The court heard that Sudhana Singh, headteacher of Moorlands primary school in Reading, claimed race discrimination and victimisation.

The council said there had been a "serious breakdown in relationships" due to Ms Singh's "autocratic style of leadership and her poor communication skills".

Singh later resigned, claiming psychiatric injury, constructive discriminatory dismissal and constructive unfair dismissal. Singh also complained that the council put "undue pressure" on a witness, Sue Heath, to give false or inaccurate evidence.

Both the employment tribunal and the EAT held that Singh's allegation should not be permitted, because judicial proceedings immunity covered all the council's activities, whether proper or improper, in gathering evidence.

Delivering the leading judgment in Singh v Moorlands Primary School [2013] EWCA Civ 909, Lewison LJ said: "One fallacy in the council's argument is that it characterises the claim as being founded upon allegedly false evidence and that it is in substance an action against the council for the evidence they have adduced or intend to adduce in court.

"On the contrary, Ms Singh's claim is not based on anything that Mrs Heath might or might not say to the employment tribunal. She has not yet given her evidence.

"It is based on what went on outside the tribunal and in particular the means by which the council procured Mrs Heath to give the statement."

Lewison LJ described the means by the council did this as a "free-standing act".

He continued: "The complaint that the council is in breach of contract would be just as valid if Mrs Heath had told Ms Singh about the alleged pressure but had stoutly resisted it.

"Thus the second fallacy in the council's argument is the proposition that it is Mrs Heath's witness statement that is alleged to have caused the damage. That is not the allegation."

Lord Justice Lewison allowed the appeal. Lord Justice Maurice Kay and Lady Justice Gloster agreed.

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