Silent witness

In Duffy v George [2013] EWCA Civ 908 the Court of Appeal provided guidance on the correct procedures an employment tribunal (ET) should adopt when a witness claims to be too frightened to be cross examined.

The appellant Michael Duffy, was accused by a fellow employee, Susannah George, of sexual harassment. She brought a claim before an employment tribunal against Mr Duffy himself, having previously settled her claim against her former employers.

Shortly before the hearing, Ms George requested an order she would not be required to attend the hearing because she was scared of Mr Duffy. Mr Duffy objected, making clear he wished to question her. The ET declined to make the order, and explained Ms George did not have to attend the hearing, but if she did not this would affect the weight that could be attached to her evidence.

At the hearing - which Ms George did not attend - the ET rejected most of her claims as not well founded. However, they upheld two specific complaints as unwanted sexual harassment, which Mr Duffy had admitted, although argued they did not amount to sexual harassment because Ms George "gave as good as she got", and so were not "unwanted".

Before the Court of Appeal Mr Duffy argued that a claim for sexual harassment could never succeed if the claimant did not provide oral evidence, simply because a claimant bore the burden of proof, which could not be discharged without a claimant being cross-examined.

Duty of fairness

The Court of Appeal unanimously rejected this: while unusual, there may be circumstances in which, with procedural adjustments to ensure that the hearing is a fair one, it is legally permissible for an ET to reach a decision against a party who has not had the opportunity to cross examine the other party. The court noted that the criminal courts have for many years had to deal with complainants in sex abuse cases who are intimidated by their alleged attacker: a duty of fairness is owed to all witnesses, including those who are justifiably too frightened to give evidence.

The Court of Appeal provided guidance on how this case ought to have been dealt with procedurally. The court held that '¨the correct procedure would be to have a pre-hearing to consider the next steps, which both parties would need to attend. '¨At this pre-hearing a judge would make directions regarding:

1. Whether they were satisfied the claimant was in fact afraid of being cross examined.

2. If so, whether the ET should dispense with an inter partes hearing.

3. If so, whether the ET should hold separate hearings so the parties give evidence in the absence of each other.

4. If so, whether the parties should be invited to provide the ET with questions they would like the ET to put to the other party at the separate hearings.

The Court of Appeal made clear that there could be circumstances where it would be reasonable for a claimant to only '¨give written evidence, though this would '¨be unusual.

Wide discretion

Despite the interesting facts, this case is important because of the guidance provided by the Court of Appeal as to the correct procedures which should be followed by an ET in such cases.

Although this situation is rare, the guidance provided will not apply only in sexual harassment cases, but in any situation with a sensitive witness who is afraid of the person who would ordinarily cross examine them.

However the Court of Appeal emphasised ETs have a wide discretion with regard to their procedural powers, and providing the ET exercises its discretion judicially and takes all the relevant circumstances into account, there will be no error of law.

The CA remitted the case for a re-hearing by a different ET. As they noted, the problem with the procedures followed by the ET was clear from the outcome of this hearing: the ET accepted Mr Duffy's denial that some of the alleged acts did not take place at all because there was no evidence and so dismissed those claims. But the ET did not accept his evidence in support of his overall defence that there was no harassment because of his evidence that Ms George had been very active in the banter between them. But that defence would have applied to all of the acts he alleged, whether or not he admitted them. This result was clearly unsatisfactory.