The EAT upheld an employment tribunal decision in the case of Force One Utilities v Hatfield,. explaining that if an employer's main witness abuses or threatens the Claimant It would be considered an appropriate response for the tribunal to strike out the defence.
The company's attempt to distance itself from its main witness in this case was not accepted as he had a central role In the direction of the case.
The timing of the intimidation also played a role. Were such a thing to happen late on in a trial then it would be less likely that a tribunal would decide that a fair trial was not possible. But as here, before witness evidence had been heard striking out the respondent's defence would be more likely to occur. Sedley LJ in the Court of Appeal in the case of Blockbuster was quoted, whereby he said that the power to strike out is draconian and should not be readily exercised ("It takes something very unusual to justify the striking out on procedural grounds of a claim which has arrived at the point of trial.").
The EAT supported the tribunal's finding that not only should the strike out affect the Respondent as regards the liability hearing but also that of the remedies hearing.
This does not mean that the striking out of the defence will automatically be translated into the claimant succeeding in his case. The tribunal would still need to try the case, albeit without the benefit of the respondent's participation. What evidence that exists would need to be heard and assessed by the tribunal. In appealing against the strike out the respondent had submitted that the tribunal decision had not tried to balance between the adverse effects of the intimidation on the claimant, with the detriment to the company if it was not allowed to defend the case. The EAT gave short shrift to that argument saying, "We do not accept that a balancing exercise is the correct metaphor in a case of this kind. The intimidatory conduct of one party is specifically designed to put the other in fear of the consequences of continuing with the action. Where a tribunal concludes that the intimidated party will be unable to manage that fear and is likely to tailor the evidence to fit with the other party's case, then it seems to us that the only proportional response is to disallow the intimidating party from being allowed to take further part in the proceedings,"
The EAT recognised that this would hinder the respondent in defending itself, but "that is a consequence which that party has brought upon itself."
It was unlucky for Mr Shutter the company's main witness in that he had been seen by the tribunal members blocking the car park with his car around the time the Claimant claimed he was intimidated.
Undoubtedly Mr Shutter's denial of having blocked the gate impacted seriously on the tribunal's willingness to believe his account of the intimidation that occurred in the car park and complained of by Mr Hatfield the Claimant.
The tribunal had been reluctant for Mr Simms the company's barrister to cross examine them on the car park incident, or indeed to make any submissions on this point. The EAT felt the tribunal should have allowed the submissions, but were
within their rights not to be cross examined on events they had witnessed.
As Mr Shutter learned to his and his company's cost, if you get caught out by one lie, the tribunal is going to find it hard to believe any of your statements when not backed up by solid evidence.
Mr Hatfield the Claimant won his case and an award for £14,000.
© Workrep 24 / 04 / 2008