Odusanya v Pennine Care Foundation Trust: witness evidence discussions and the right to representation

The Employment Appeal Tribunal has allowed a partial appeal in Odusanya v Pennine Care Foundation Trust & Ors [2026] EAT 5, finding that an employment tribunal erred by preventing a litigant in person from consulting her newly instructed representative before responding to a strike-out application, even though she remained under oath whilst giving evidence.

Mrs Odusanya, initially represented by the Royal College of Nursing, became a litigant in person shortly before her hearing. On the fourth day of proceedings, whilst still under oath during cross-examination, she instructed a new representative, Mr Lennard, following a conference call arranged by her sister. The tribunal had repeatedly warned her not to discuss her evidence during adjournments.

When the matter came to light, the respondents applied to strike out her claims under Rule 37(1)(b) and (e) of the Employment Tribunal Rules 2013, arguing unreasonable conduct and that a fair hearing was no longer possible. The employment tribunal granted the application, finding that the claimant's conduct had irreparably damaged trust in her evidence and breached clear instructions.

His Honour Judge Beard upheld two of the five grounds of appeal. Critically, he found that whilst a witness under oath may not discuss evidence, fairness may require permitting a litigant to obtain advice on procedural or legal issues arising during the hearing. The claimant had expressly asked to speak with her representative about the strike-out application—a matter unrelated to the factual evidence she was giving.

The EAT distinguished between discussing evidence (impermissible) and seeking advice on procedural applications (potentially permissible where fairness requires). Requiring the claimant to respond to a potentially dispositive strike-out application without legal advice, particularly when facing experienced counsel, risked creating the "rabbit in the headlights" situation identified in Cox v Adecco—especially problematic for litigants in person confronting unexpected legal issues.

The judgement emphasised that preventing consultation deprived the claimant of her statutory right to representation under section 6(1) of the Employment Tribunals Act 1996. Representation encompasses not merely advocacy but also advice and case preparation. The fact that Mr Lennard was involved in the discussions at issue did not automatically justify denying the claimant access to advice on the separate matter of the strike-out application itself.

The EAT also found procedural unfairness in requiring the claimant to give an account whilst still under oath without opportunity to obtain advice on the strike-out allegations. Natural justice required either accepting her position at face value or making findings of fact through a fair process that allowed for representation where requested.

However, three grounds failed. The tribunal had not misdirected itself on the relevant authorities, including Chidzoy v BBC. Employment tribunals may reject a claimant's account of discussions and treat conduct as deliberate and contumelious without identifying precise content. The warning not to discuss evidence was appropriate, and strike-out would have been proportionate had proper procedure been followed.

The matter was remitted to a different tribunal panel. Judge Beard noted that the original panel had made significant credibility findings and expressed lack of trust in the claimant, making it difficult to start afresh without reference to those previous impressions. Importantly, nothing in the judgement prevents respondents from renewing their strike-out application following proper procedure.

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