SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Tribunal struck out the Claimant’s claims on the
basis that, as a result of threatening emails sent to the Respondent’s primary
witness, a fair trial could not be had. The ET did not hear evidence about
what had happened from the Claimant or the witness on the basis of what the ET
said was agreement between the parties. The Claimant disputed that there had
been such agreement.
Held: After hearing the Claimant and the witness give
evidence, that there had been such agreement, that the ET had correctly
directed itself on the law and had reached a permissible conclusion.
HIS HONOUR JEFFREY BURKE
QC
Introduction
1.
This is an appeal by the Claimant before the Employment Tribunal,
Ms Obasa, against the Judgment of Employment Judge Hill at the
Reading Employment Tribunal, sent to the parties with Reasons on
21 February of last year, that the Claimant’s claims that she had been the
victim of race and disability discrimination and had been subjected to
detriment by the Respondent, Buckinghamshire County Council, should be struck
out. Those claims were the only claims which survived an earlier hearing
before a different Employment Judge on 27 August 2010.
History
2.
Ms Obasa had been employed by a company called Socialwork 2000 and
deployed by them to work in the social services area at the headquarters of
Buckinghamshire County Council in Aylesbury. When Ms Obasa made her claim
initially, both Buckinghamshire and Socialwork 2000 were Respondents; but the
latter were discharged from the proceedings by the Employment Tribunal at the
earlier hearing. The claim continued against Buckinghamshire on the three
bases to which I have referred. A further Pre‑Hearing Review was heard
on 11 February between Ms Obasa and Buckinghamshire; it was at that
hearing that the strike‑out order was made. Although I do not have the
full text of Ms Obasa’s originating applications against Buckinghamshire, it
is not in dispute that central to what passed between Ms Obasa and
Buckinghamshire was a Ms Jeanette Blake, an employee of the county;
she was Ms Obasa’s manager; and it was she who made the decision that
Ms Obasa should cease to work for the county some three weeks after she
had started.
3.
On 9 September 2010 Buckinghamshire applied to the Tribunal
for an order striking out Ms Obasa’s remaining claims. The application
was based on a series of emails, which, it is not in dispute, was compiled and
sent by Ms Obasa to Ms Blake. Those emails are fully set out in the
Employment Tribunal’s Judgment; but I will read the relevant parts again into
this Judgment so that the contents can be seen and read without cross‑reference.
The first, sent by Ms Obasa to Ms Blake on the morning of
8 September at 8.19am, and then sent again an hour later, read, so far as
relevant, as follows. It was addressed to Ms Blake as “Jeanette” and it
said:
“You are a liar and you will never get away with what you’ve
done to me and my family. There is no where you can hid [sic]. What did I
ever done to you [sic], what work performance? You have to come clean, tell
the truth before blood is shed.”
4.
The word “LIAR” then appeared set out six times in a geometric pattern,
and then the following words appear:
“HOW DO YOU SLEEP AT NIGHT? THE MONEY YOU FEED YOUR FAMILY WITH
IS BLOOD MONEY. LOOK AT YOUR LOVE ONES [sic] AND KNOW WHAT YOU HAVE DONE TO
ME.
Regards
Buki Obasa”
5.
The next email was sent on the same day, again twice, at 2.14 and 3.15
in the afternoon. By that time it seems that, as a result of the first email,
the police had been involved and had spoken to Ms Obasa; for she said:
“Hi Jeanette
Thank you for the phone call from your friend/network Thames Valley Police. She stated that you reported me for harassment. They would have
reported back to you that I put the phone down on them. They stated that you
were worried, wonders never end eh, you are not worried about abusing me and
adult [sic] with learning disability, but worried when I gave you your rightful
name”
6.
Then the word “LIAR” is set out again three times, and the text
continues:
“Do what is right and tell the truth, you will be doing me a
great favour and the truth will set you free, no more worries darling ….
You need to lay charges for the Police friends to help you and
you will be making my day, I will actually get help to fight you back the power
will not be all on your side. You have given my information out to 3rd
party, but that is all right, you are all criminals together. I will be
complaining to the police complaint board, but they did not give their name.”
Then Ms Obasa signed herself off in the same form as
before.
7.
Next morning at 8.39am a third email was sent. It said:
“Good morning LIAR, LIAR
Your daughter and family must be very proud of you. You must
have so much power or the corrupt and discrimination system we live in protect
you too well, that is why you have continue abusing me and service users. They
have not even triggered safe guarding investigation. The law must be change,
your action will be a turning point in the change to the law, mark my word, I
will not stop until people like you are stopped.
There will be no hiding place for you as long as I live, no
matter how many years it takes me. […]”
I do not need to read that any further.
8.
As a result of these emails the Head of Legal Services of
Buckinghamshire wrote to Ms Obasa, asking her not to communicate with
anybody at Buckinghamshire except through his or her office; but Ms Obasa
did not comply with that request; she sent further emails to a number of
people, setting out her thoughts about what had happened, including making
repetitive allegations that Ms Blake had harassed her and used the police
to harass her.
9.
By the date of the hearing before the Employment Judge on 11 February,
Ms Obasa had been charged by the police with sending offensive messages
through a communications channel. She had pleaded not guilty to that charge;
she was in fact tried and convicted on 6 May. For the purposes of that
hearing both the Claimant and Ms Blake had prepared witness statements.
In her witness statement Ms Blake described her position as a team manager
in a social work team dealing with service users from the age of 14 upwards.
She described how she had been Ms Obasa’s line manager during
Ms Obasa’s three weeks or so working for the county. I do not intend to
go through all of her witness statement; I shall refer simply to some of its
paragraphs. At paragraphs 8‑10 she described how she had been at
work when she received the first of the emails, the contents of which I have
just set out. She described that she was worried about her safety, especially
as a result of the use in the email of the words, “You have to come clean, tell
the truth before blood is shed”. She said she was shaking and started to cry;
she took the words I have just referred to to mean her blood, as the email was
addressed to her, and the reference to her family made her anxious about her
family’s safety. She said that the contents appeared to her to be deliberate,
that she felt that Ms Obasa’s behaviour was unpredictable, and that she did not
know what she could do or be capable of doing. She described how she found it
difficult to work that morning and had to cancel several appointments, that
each successive email made her feel worse, and, in paragraph 19, she
described the email of the following day, referring to the words, “I will not
stop until people like you are stopped”, and, “There will be no hiding place”,
as a clear threat that Ms Obasa would continue to threaten her until she
got what she wanted and that this abuse would be long‑term.
10.
As the emails continued, she said, she felt harassed and intimidated and
saw the emails not only to her but to other organisations and individuals as an
attempt continually to harass and intimidate her, and remind her that she was
still there and was not going away. She said, at the end of her witness
statement, that she felt that Ms Obasa had targeted her, as she knew that she,
Ms Blake, would be involved in Ms Obasa’s claim by giving evidence,
and she believed that she could stop Ms Blake from giving evidence.
11.
Ms Obasa’s witness statement was couched in very strong terms. She
recited how she believed that the county had behaved scandalously, dishonestly
and unreasonably in the proceedings and in reporting what had happened to the
police; she actually exhibited to her witness statement the emails without
seeking to explain or justify their terms other than as a response to the
treatment she felt had been meted out to her. There was no expression of
apology or remorse or of understanding as to why Buckinghamshire had made the
application which it had. She put in a second witness statement in order to
answer Ms Blake’s witness statement, in which she repeated that
Buckinghamshire had tried to get her arrested for theft, which related to the
taking of a notebook that she had used while she had been working with
Buckinghamshire, and had made false allegations against her and that
Buckinghamshire and Ms Blake had continued to attack, intimidate and
criminalise her by seeking to have her claim struck out. She said that she had
sent the emails to get somebody to talk to her as a cry for help; but she also
repeated her plain and deep feeling that Ms Blake and Buckinghamshire
would go to any lengths to cover up the illegal acts and discrimination which they
had carried out and had lied and misrepresented facts and evidence to the
police, the Tribunal, the courts and elsewhere.
The Tribunal’s Decision
12.
It would have been apparent to the Employment Judge, on reading these
witness statements, firstly that there was no dispute that Ms Obasa had
sent those emails, secondly that at the time that she had sent them she was
very angry and, thirdly, that she had not offered any suggestion that she did
not mean what she had written or any apology for what she had written but
instead, sought to justify the emails on the basis that she had herself been
badly treated. It was also plain that Ms Blake’s reaction to the emails,
as set out in her witness statement, were not on the face of it abnormal (indeed
nobody has suggested, as far as I am aware, that they were exaggerated or
anything other than might reasonably be expected); and that there was to be a
criminal trial of Ms Obasa for harassing Ms Blake by sending her the
emails, that Ms Obasa was not going to accept that she had committed any
offence and that both Ms Obasa and Ms Blake would therefore have to
give evidence at that trial about precisely the matters which were at issue
before the Employment Judge. The Employment Judge’s account of what she did in
that situation is set out in paragraph 10 of her Judgment in these terms:
“For the purposes of these proceedings, both Jeanette Blake and
the Claimant had prepared witness statements. The Claimant was present with
family support, but unrepresented. I was conscious that there were outstanding
proceedings in the Magistrates Court relating to the relevant emails and was
anxious not to in any way jeopardise those criminal proceedings by having
lengthy cross examination of either of the two people who had made witness
statements. I was also anxious to avoid unduly distressing either of those two
persons. With the consent of both the Claimant and Counsel for the Respondent,
we agreed that I would read those statements to myself and would deal with the
Respondent’s application for the case to be struck out for the unreasonable
conduct of the Claimant on the basis of submissions only.”
13.
It is helpful also to set out in this Judgment what the Employment Judge
said at paragraphs 11 and 12:
“11. During the court of the proceedings the Claimant became
distressed so we took a break for a few minutes to allow her to get herself
together and discuss the hearing with her family if she so wished.
12. In order to ensure that at the end of the Hearing, the
Claimant was aware of the outcome, she was given the Judgment. I reserved my
reasons. The Claimant is dyslexic and it therefore seemed an appropriate adjustment
on the Tribunal’s part to allow her to have the Reasons in writing which would
enable her to assimilate the information at her own pace and in the privacy of
her own home.”
14.
The Employment Judge then summarised the submissions of Buckinghamshire
on the one hand and Ms Obasa on the other. She said that she had
considered the two authorities put before her, namely Force One Utilities Ltd v Hatfield
[2009] IRLR 45 and Bolch v Chipman [2004] IRLR 140, and
that, basing herself on the latter, she directed herself to pursue a three‑stage
approach to the issue which she had to decide, which involved setting herself the
following three questions and then answering them:
“19.1 Has the conduct related to the manner of the proceedings;
19.2 Did the conduct make it impossible to hold a fair trial;
19.3 If yes, was there some response, short of barring the
wrongdoing party, which would be proportionate?”
15.
She then set out her conclusions. She began by noting that to strike
out a claim is a draconian act, because the claim as a result could not be
heard. She then went through the factual history; and she said this at
paragraphs 27‑30:
“27. I note that the Claimant says that Ms Blake is
attacking her but within her statement the Claimant says that the matter is very
personal. Within her statement, the Claimant says that the aim is to get
Ms Blake to stop lying and do the right thing. The Claimant says that
Ms Blake wants to stop her working and finally says that her own character
is such that she would not hurt anyone.
28. In deciding whether the behaviour is scandalous vexatious or
unreasonable, I have to consider the tenor and purpose of the emails. The
emails sent on 8 & 9 September (para 5) are threatening and
offensive. Anyone receiving them would be shaken and upset. Ms Blake’s
witness statement makes it clear that she was extremely distressed by them and
genuinely feared for her personal wellbeing.
29. The Claimant was warned by the Respondent to desist sending
those emails. The Respondent changed Ms Blake’s email address and mobile
number. She ceased therefore to receive them, though according to her witness
statement, they still went into her deleted box. The Claimant did not comply
with the direction to communicate only with the Head of Legal Services. The
subsequent emails that were copied to a number of people continue to make
extremely unpleasant allegations against Ms Blake.
30. I have to ask why the emails were sent by the Claimant. It
appears that she has retained a notebook that dealt with her work as an
employee as a result of which according to the Respondent the head of the
department directed should be recovered. This is not an option therefore of
Ms Blake. Ms Blake was the person who decided that the period of
work should come to an end and thereafter the Claimant appears to have labelled
Ms Blake as being the villain of the piece.”
16.
Having set out the facts in that way, she then, at paragraph 31,
addressed the three questions which she had, on the basis of the decision in Bolch,
directed herself to answer. She said this:
“31.1 Does the conduct relate to the manner of the proceedings?
The answer to that clearly must be yes. Ms Blake is the key witness for
the Respondent. The emails arise directly from what had happened to the
Claimant in the termination of her contract at the Respondent and to what
happened on 27 August 2010 at the Case Management Discussion.
31.2 Do those emails make a fair trial impossible? In my view,
yes they do. Ms Blake is clearly frightened by the Claimant’s behaviour.
The Claimant’s behaviour before me today in the Tribunal was to continue to
make serious accusations about Ms Blake. For the most part, she failed to
address me but turned her head so that she was directly facing towards
Ms Blake and directing the comments towards her. I considered this to be
very intimidating. Ms Blake is entitled to feel intimidated and
threatened by the vehemence of the comments. Clearly such behaviour will
impact on Ms Blake’s ability to give evidence. The Claimant expects her
actions to change the evidence Ms Blake will give i.e. in the Claimant’s
words ‘to do the right thing and stop lying’.
31.3 Would any action short of strike out achieve the end? I
cannot see what action could be taken by the Tribunal to prevent the Claimant
from pursuing what appears to be a campaign against Ms Blake with a view
to seeking to have her change her evidence. During her submissions to me which
lasted for approximately 40 minutes, the Claimant became less and less able to
focus on the issues. On a number of occasions, I asked her directly to focus
on the question of the emails, which was what I needed to consider for the
purposes of this strike out application. She found that difficult to do. She
became more and more distressed as she talked about all the matters that she
said had been done to her as a wrong by Ms Blake. Her statement is
vitriolic in its dislike of Ms Blake. The emails post 8/9 September
demonstrate that as well.”
17.
She concluded, at paragraph 32, that the only behaviour which had
to be considered was that of the Claimant and at paragraph 33 that that
behaviour meant that it would not be possible ever to hold a fair trial; and she
concluded that therefore the order sought by Buckinghamshire should be made.
The appeal
18.
Ms Obasa’s appeal against the Employment Judge’s order was put in
the Notice of Appeal on three bases. The first is that the Employment Judge
fell into procedural error by not requiring Ms Blake to give evidence, by
not hearing evidence from Ms Obasa and then by proceeding, as she had set
out in paragraph 10 of her Judgment, to reach her decision on the basis of
her reading of the witness statements of Ms Blake and Ms Obasa.
Although in paragraph 10 she recorded that both Ms Obasa and counsel
for the Respondent, Mr Hignett, had agreed with that course, it was
contended by Ms Obasa that she had not agreed to that course. The second
basis set out in the Notice of Appeal was that the Employment Judge, while
purporting to apply the correct legal principles, had departed from them in
relation to the third question by failing to consider whether some action short
of strike‑out could be taken, and instead considering whether the
Tribunal could stop Ms Obasa from pursuing her campaign against
Ms Blake. The third basis was that the decision was, for various reasons
set out in the Notice of Appeal, perverse.
19.
The appeal was rejected at the sift stage by HHJ Serota QC;
but Ms Obasa sought an oral hearing under rule 3(10) of the Employment Appeal Tribunal Rules,
which was heard by Carnwath LJ on 14 September 2011. He took
the view, having been told by Ms White on behalf of Ms Obasa that
Ms Obasa and a friend of hers who was present with her at the hearing were
prepared to swear affidavits that there had been no agreement of the type set
out in paragraph 10 of the Judgment, that that issue had to be addressed
at a full hearing and that it was arguable that the step of striking out was
excessive; and he allowed the appeal therefore through to the full hearing,
which has been heard before me today. I am, of course, in reaching my decision
not affected by the views expressed either by HHJ Serota QC at the
sift stage or by Carnwath LJ at the rule 3(10) stage; I make my
decision on the basis of the material which I have read, heard and seen at this
full hearing today and on the basis of the submissions put before me by
Ms White on behalf of Ms Obasa and Mr Hignett on behalf of
Buckinghamshire. I should add that Ms White has appeared under the aegis
of the Bar Pro Bono Unit; and I hope that Ms Obasa is duly grateful for
the efforts that she has put in, as I certainly am.
Agreement
20.
Was there an agreement as to Ms Blake and Ms Obasa’s
evidence? As envisaged by Carnwath LJ, affidavits have been put before me
on both sides, by Ms Obasa and by Ms Mowat, the solicitor for
Buckinghamshire who has had the conduct of this case throughout. Although no
orders for cross‑examination had been made before today, it was obvious
that, in order for the issue as to whether there was an agreement to be
determined by me, Ms Obasa and Ms Mowat were going to have to give
evidence and to be subject to cross‑examination, as indeed, by agreement
between counsel, has happened. In her affidavit Ms Obasa made a number of
complaints about the Employment Judge’s handling of the hearing on
11 February and repeatedly accused her of bias. I shall leave those complaints
on one side, save in so far as they relate to whether or not there was the
agreement set out in paragraph 10 of the Employment Judge’s Judgment. These
other complaints do not fall within the grounds of appeal and are irrelevant
for present purposes.
21.
On the issue which is relevant for present purposes Ms Obasa said
this (all verbatim):
“The important point are that the judge refused for Jeannette
Blake to give evidence or allow me to ask her questions, although she put
questions to me and I was not allowed to ask Jeannette Blake questions,
Jeanette Blake word was accepted and trusted while mine was clearly not from
the judge Hill’s point of view, action and recordings. […]
Judge Hill acknowledge that there was a criminal case
decision pending on 6 May 2011 at the magistrate court,
Judge Hill stated she did not want evidence that would incriminate and
have an impact on that case, reason why I was not allowed to put questions to
the witness Jeannette Blake. The Judge then send all parties out for 45
minutes to make her decision, came back and stated that her decision was to
strike out my case […].”
22.
While it is not as explicitly stated in that affidavit as it would have
been had it been professionally drafted, I accept that Ms Obasa is there
saying that she did not agree to the course proposed by the Employment Judge.
Ms Mowat in her affidavit says that Ms Obasa did agree with that
course. There is no affidavit, as suggested by Ms White at the rule 3(10)
hearing, from the friend who was at the original hearing to assist
Ms Obasa; but on Buckinghamshire’s side I do not have an affidavit, as
there could have been from Mr Hignett, who was present as counsel at the
hearing. I understand why that is so; he is still their counsel and cannot
play the role of a witness and an advocate. I have put out of my mind anything
to do with evidence which I do not have; I decide the issue on the material
which I do have.
23.
That material includes a response from the Employment Judge, who of
course cannot give evidence and be cross‑examined, as intended by the
order made at the rule 3(10) hearing. She deals with a number of issues
raised by Ms Obasa’s affidavit, but I do not need to consider in her
response what goes beyond the central issue with which I am now concerned. As
to that, the Employment Judge said:
“[…] no one gave evidence on oath in order to avoid any argument
in the Magistrates Court hearing about contamination or corruption of the
evidence. All parties agreed to this.”
24.
I have to decide whether Ms Obasa did or did not agree to the
course proposed by the Employment Judge. I have heard Ms Obasa and
Ms Mowat give further evidence in chief and be cross‑examined.
Counsel agree that I have to decide which evidence I prefer. I have paid
careful attention to what both witnesses said and how they said what they
said. Having done so, I have reached the clear conclusion that Ms Mowat’s
evidence is to be preferred. Although today Ms Obasa has been quiet,
courteous and perfectly behaved, she did not find it easy to direct her answers
to the questions she was asked in cross‑examination. There is no doubt
that she was emotionally affected at the hearing before the Employment Judge,
so much so that at one stage the Employment Judge broke off the hearing to
allow her time to recover from her distress; and in my judgment her memory of
what went on in that hearing is unreliable and not consistently accurate. She
told me, for example, that she had given evidence to the Employment Judge and,
in answer to a question from me, that for that purpose she had left where she
was sitting and gone to the witness table and been sworn. She then said that
she had never left the invalid scooter in which she had been sitting.
Ms Mowat’s evidence is that Ms Obasa did not give any evidence, and
that if she had, she would have made a note of it; she has some notes, but only
notes of controversial matters; and there is no note of any evidence that she
gave. The Employment Judge’s Judgment does not suggest that Ms Obasa gave
any evidence at all, but makes it clear, at paragraph 10, that the
Employment Judge was at pains to avoid Ms Obasa and Ms Blake giving
evidence.
25.
I was asked to look an email sent to the Employment Tribunal by
Ms Obasa in which she asked for details of her swearing on the day, i.e.
did she swear on the Bible. The answer came from a Mrs Keep, saying, “the
Claimant’s oath was on the New Testament”. Ms Obasa had also asked who
was the clerk before the Tribunal, and Mrs Keep told her that the clerk
was Mr K Mazur. I have not seen a witness statement from
Mrs Keep; she has not been called before me. I have not heard from
Mr Mazur. There is no evidence that either Mrs Keep or Mr Mazur
was even in the Tribunal room at any material time; and I find that that email
is of very little assistance. I have no doubt that Ms Obasa did not give
evidence and that this is an example of her faulty recollection. Ms White
elicited that Ms Mowat has no note of the agreement on which the
Employment Judge relied; but it seems to me that there is a wholly
understandable reason for the absence of such a note. Ms Mowat has set
out in her witness statement and adhered in cross‑examination to her
evidence that Ms Obasa did not object to the course that the Employment
Judge proposed. At that stage nobody would have anticipated that there was
going to be any controversy over that issue, and, while perhaps Ms Mowat
on another occasion now would make a fuller note, it is easy to understand why
she did not do so on that occasion.
26.
Ms Obasa told me that the Employment Judge asked her questions and
that she was giving answers, and the Employment Judge stopped her because she
was going into too much detail and because Ms Obasa was giving evidence
that she did not require. Ms Mowat described how, when the Employment
Judge was hearing Ms Obasa’s submissions on the striking‑out issue,
she did ask Ms Obasa questions and Ms Obasa kept going into detail
about the facts relating to the merits of her claim and it was in that context
that she had said, as she told me she had said, that she wanted to ask
questions of Ms Blake. In my judgment, Ms Obasa has confused that
part of the hearing, where she was being asked questions by the Employment
Judge, with what happened earlier. It is understandable that the Employment
Judge would say to her that she did not want to hear about the merits of her
claim or of Buckinghamshire’s resistance to it; and it is significant that the
Employment Judge said, and Ms Obasa has told me that she said, that she
did not want to hear evidence. It is also significant that Ms Obasa did
not say that she wanted Ms Blake questioned about the effects on her of
the emails, as opposed to wanting to ask her questions about the merits of her
claim and Buckinghamshire’s response to it, which of course were issues that
were not relevant for the purpose of the hearing before the Employment Judge.
27.
In my judgment, Ms Obasa has confused the process and what happened
that day; and her evidence is not reliable. She did not give evidence, I find;
she did not seek to have Ms Blake questioned about the issues which went to the
strike‑out application. I am firmly of the view that she agreed with the
course proposed by the Employment Judge, namely that she and Ms Blake
should not give evidence on those matters but that their witness statements
should be read and considered. The hearing, therefore, proceeded on that
basis. That ground of appeal therefore fails.
Other grounds
28.
That is not, however, the end of this appeal. In the Notice of Appeal
and in her skeleton argument Ms White said that the Employment Judge
should have adjourned the hearing until after the criminal trial. That point
is no longer taken, and I need say no more about it. What is said is this. It
is accepted that, at paragraphs 19 and 31 of her Judgment, the
Employment Judge correctly identified the three questions which she had to ask
and answer based on the guidance given in the decision in Bolch,
to which I have already referred, and answered those three questions.
Ms White makes no criticism of any part of the Judgment of the Employment
Judge save in respect of paragraph 10, with which I have already dealt, up
to the point at which the Employment Judge sought to answer the second two of
the three questions, namely is a fair trial impossible, and would any action
short of strike‑out achieve the end, the end being the achievement of a
fair trial. Ms White’s submits as to those two sub‑paragraphs of
the Judgment, which she regards, justifiably, as both going to a single
question - namely do the emails make a fair trial impossible unless there is a
strike‑out and a strike‑out is the only solution? - that striking
out is a draconian step, a step of last resort even in a case such as this of
witness intimidation and that the Employment Judge should have concluded that
there were other appropriate methods to address the effects on Ms Blake of
the emails without sacrificing Ms Obasa’s claims altogether by the strike‑out
order.
29.
In effect, she submits that the Employment Judge, in concluding that
action short of striking out would not achieve a fair trial and that the emails
made a fair trial impossible, reached a perverse decision, either in the sense
that no reasonable Tribunal could so decide or in the sense that the Employment
Judge failed to take into account a material factor, namely the existence of
potentially effective alternatives to the ultimate sanction of striking out.
Those alternatives (not including the adjournment point which has not been
pursued), Ms White suggests, were excluding Ms Obasa from part of the
proceedings, providing Ms Blake with protection such as is afforded to a
vulnerable witness in a criminal trial or proceeding on the basis that
Ms Obasa wrote down the questions she wanted to put to Ms Blake in
cross‑examination, provided them to the Judge and allowed them to be
subjected to a filtering process by the Judge before they were to be put by the
Judge to Ms Blake.
30.
However, firstly the Judge began her conclusions by reminding herself,
in paragraph 20, that to strike out a claim is draconian and has the
effect that the case cannot be heard at all; so she was fully aware of the
nature and effects of the steps which she was being asked to take. She set out,
at paragraphs 27 and 28, the effect on Ms Blake of the
emails; and, at paragraph 31.2, she said that Ms Blake was clearly
frightened by the Claimant’s behaviour, which she saw - and she was entitled to
see it in this way - as being reinforced by the fact that, in the Tribunal,
Ms Obasa had made serious accusations against Ms Blake and, rather
than addressing the Employment Judge, she had turned her head so that she was
directly facing Ms Blake and directing the comments towards her, which the
Employment Judge regarded as further intimidation which would clearly impact on
Ms Blake’s ability to give evidence. She asked herself expressly whether
action short of a strike‑out would achieve the end of a fair trial, and
said that she could not see what action could be taken by the Tribunal to
prevent Ms Obasa from pursuing what appeared to be a campaign against
Ms Blake with a view to seeking to have her change her evidence.
31.
The first alternative put forward by Ms White, namely excluding
Ms Obasa from part of the proceedings, was, as she accepted, something which
could not readily be expected to succeed at all. While a claim can be pursued
when a Respondent has been excluded, it is difficult to see how a claim could be
pursued when a Claimant has been excluded, even for part of the hearing. If
that part was the cross‑examination of Ms Blake, it would have been
impossible, especially since Ms Obasa was representing herself and did not
indicate that she had any intention of being represented. Furthermore, that
step, screens and the suggested form of questioning to which I have referred
would not have addressed the mischief which the emails, according to the
findings of the Employment Judge, were intended to produce. The effect of
Ms Obasa’s behaviour was not intended to be such that Ms Blake would
feel uncomfortable in the witness box but that she would feel obliged by the
threats not to give evidence at all or not to give evidence adverse to
Ms Obasa; that is what someone who intimidates a witness seeks to achieve;
and that potential effect is not healed or addressed by screens or devising
methods of questioning of the type which Ms White has suggested. It was not only
what might happen in the Tribunal at the full hearing of the complaint that was
the issue; the threats were, or at least included, things that might happen
outside the Tribunal to Ms Blake and her family.
32.
That is the view which the Employment Judge took, as is clear from what
she said in paragraph 31. There is nothing to indicate that she did not
consider alternative routes before deciding that nothing but strike‑out
would do. She specifically asked herself, as I have said, whether action short
of strike‑out would achieve the relevant end and concluded, for the
reasons that she set out, that there was no such action. She did not need
expressly to list all the possible alternatives and then to reject each of them
one by one. She asked herself the right questions and gave answers which were,
in my judgment, clearly permissible answers within the broad exercise of her
discretion. There is nothing that shows that she did not take into account all
factors that she needed to take into account, or took into account any factor
that she should not have taken into account; and her decision was not outside
the range of decisions open to a reasonable Tribunal on the material before
her.
33.
Mr Hignett submits, indeed, that her decision was, in the face of
the nature of the emails, the only decision open to her. He points to
paragraphs 36 and 37 of the decision of the Employment Appeal
Tribunal in the first of the two cases to which I have already referred, Hatfield,
a decision presided over by the then President, Elias J.
Paragraphs 36 and 37 of the Employment Appeal Tribunal’s
Judgment on that appeal read as follows:
“36. 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, at least with respect to liability.
It is a draconian step to take and it plainly does affect the ability of the
intimidating party to defend the case, but that is a consequence which that
party has brought upon itself.
37. In our judgment, once a tribunal finds that a party is
sufficiently intimidated as to affect his or her ability to give evidence
without fear of consequences, the only proportionate response can be to bar the
other party from participating in the trial. Of course, as in this case it
will still be necessary for the claimant to prove the evidence to establish the
case and that may not always be possible, such as where the evidence conflicts
with contemporaneous documents. Plainly there is prejudice to the respondent
in this case, but it is something which they have brought upon themselves.”
34.
Based on that and the earlier paragraph in that Judgment,
paragraph 28, in which it is said that a Tribunal is the body “best placed
to appreciate the impact of intimidatory conduct”, and that an appeal against
the decision in such a case, “can only succeed if the conclusion of the
Tribunal was perverse”. Mr Hignett submits that, it having been found
that Ms Blake was sufficiently intimidated as to affect her ability to
give evidence without fear of consequences, the only proportionate response was
to strike the claims out. I respectfully agree with what was said by the
Employment Appeal Tribunal in the paragraphs that I have just set out; but I do
not need to go that far in this case, nor do I need to give general guidance to
Tribunals as to how to address cases of witness intimidation; there are already
sufficient authorities which deal with that, and I have not had before me (and
I say this in critical spirit), a full bilateral examination of those
authorities or of the consequences of any guidance which I might be tempted to
give to cases that involve other factual situations.
Conclusion
35.
It is not necessary for me to go further than to say what I have already
said: that in this case I am clearly of the view that the Employment Judge
directed herself correctly as to the law and made a decision on the facts in
the exercise of her discretion which was, for the reasons I have set out, not
perverse in any sense. The appeal must therefore be dismissed.
