M Odusanya v Pennine Care Foundation Trust & Ors

SUMMARY PRACTICE AND PROCEDURE The Appellant appealed against the ET decision to strike out her claims under Rule 37(1)(b) and (e) of the 2013 ET Rules on the basis of unreasonable conduct and that the conclusion that a fair trial was no longer possible. The strike‑out followed the ET’s finding that, while still under oath, the Appellant had discussed her case with her sister and a newly‑instructed representative, contrary to the repeated warning not to discuss her evidence during adjournments. The appeal was allowed in part. Grounds 2 and 3 were upheld; Grounds 1, 4 and 5 were dismissed. Ground 1 – Application of Chidzoy v BBC . The Appellant argued that the ET misdirected itself by failing to identify the content of any discussions said to have breached the witness warning. Although an ET should ordinarily seek to ascertain content in order to assess whether the administration of justice has been imperilled, it may reject the claimant’s account and, in doing so, treat the conduct as deliberate and contumelious within De Keyser principles. That approach accords with Chidzoy . Ground 2 – Right to representation ( ETA 1996 , s.6(1) ). The Appellant was not permitted to consult her newly‑instructed representative before being required to respond to the strike‑out application. The EAT held that, although a witness under oath may not discuss evidence, fairness may require permitting a litigant to obtain advice on a procedural or legal issue arising mid‑hearing. She had expressly asked to speak to her representative. Preventing this constituted a deprivation of her statutory right to representation and risked unfairness. Ground 2 upheld. Ground 3 – Natural justice. Requiring the Appellant to give an account while still under oath and without permitting her to obtain advice on the potentially dispositive issue of strike‑out was procedurally unfair. The ET’s process did not give her a fair opportunity to respond to the allegations of misconduct. Ground 3 upheld. Ground 4 – Interpretation of the warning not to discuss the case. Although instructions should focus on preventing influence on evidence, the ET had made factual findings that the Appellant had discussed her evidence. On that basis any overly broad interpretation of the warning did not affect the outcome. Ground 4 dismissed. Ground 5 – Proportionality of strike‑out. Had the ET followed the correct procedure and made the same findings of fact, strike‑out would have been a proportionate response in light of the potential impact on the fairness of the hearing. Ground 5 dismissed. HIS HONOUR JUDGE BEARD

1. This is an appeal against the Employment Tribunal’s (ET) strike out of the claimant’s claims. I shall refer to the parties as they were before the ET as claimant and respondents.

2. The grounds of appeal are: Ground 1 alleges a misapplication of Chidzoy v BBC in that the ET failed to distinguish key factors, including nature of discussions and claimant’s rights to instruct lawyer; Ground 2 argues there was an interference with the right to representation the ET unlawfully restricted the claimant’s statutory right under s.6(1) Employment Tribunals Act 1996 to consult a representative and incorrectly declared that a representative was ‘not yet appointed’. Ground 3 contends that there was a breach of natural justice because there were adverse findings made without allowing claimant and witnesses to give evidence and the claimant was denied the opportunity to produce a phone log. Ground 4 relates to a misinterpretation of the ET instruction where the ET wrongly concluded there was a breach of an ‘express instruction’ when the actual warning was limited to not discussing evidence while under oath. Ground 5 is an argument that strike-out was disproportionate and alternatives were not considered further that the ET relied on irrelevant factors and ignored uncertainty about discussions.

3. The ET judgment sets out that the claimant was initially represented by the Royal College of Nursing but became a litigant in person shortly before the hearing. The claimant made late applications to introduce new evidence and amend issues on the first day of the hearing, which were refused as unreasonable and prejudicial. The ET judgment indicates that during the hearing, the claimant was repeatedly warned not to discuss her evidence while under oath. On the fourth day of the hearing it emerged that the claimant had instructed a new representative (Mr Lennard) during a break while still under oath, after a conference call arranged by her sister. The claimant had shared case documents and discussed representation overnight, contrary to explicit Tribunal warnings. The respondents applied to strike out the claims under Rule 37(1) of the Employment Tribunal Rules arguing that the claimant’s behaviour amounted to unreasonable conduct of proceedings and that a fair hearing was no longer possible.

4. The ET considered the relevant case law and made the following findings: the claimant’s conduct was unreasonable and breached clear instructions; that trust in her evidence was irreparably damaged as there was the risk of tainted testimony; that no lesser remedy (e.g., costs or adjournment) was appropriate because a fair trial was no longer possible. The ET decided that all claims should be struck out under Rule 37(1)(b) and (e). The ET emphasised that it understood that strike-out was a draconian measure but concluded that it was justified in this case because of the breach of instructions; the claimant’s lack of candour; the potential influence on evidence and prejudice to respondents and to the public interest.

5. The following paragraphs of the EDT reasons are relevant to this appeal: Paragraphs 16 and 17 16 The claimant remained under oath overnight between day 2 and day 3. At the end of the day on day 2, the claimant was given the standard warning by the judge which cautioned her to avoid discussing anything to do with her evidence overnight, and was told that although this may be difficult, she needed to do so until she was released from being under oath after her evidence had finished. The claimant appeared puzzled by this instruction and so was told that this was the standard warning given to all witnesses in the same situation and that the respondents’ witnesses would be given the same warning in the event that they were still under oath across any kind of break. The claimant asked for clarification of this. The judge acknowledged again that it might be difficult, but that she was not to discuss the case at all and should talk about anything else that night, such as the weather or television programmes. She was assured that she would be able to discuss it in any way she wished once she had finished being cross-examined, but until then she could not do so. The claimant acknowledged the explanation and the hearing concluded. 17 On day 3, the claimant continued to be cross-examined. The claimant was unaccompanied at the Tribunal that day. The Tribunal adjourned for a comfort break at 12 noon for 15 minutes and the claimant was reminded about the need not to discuss her evidence with anyone else. The Tribunal took a lunch break at 1.05pm and the claimant was given the same warning. The judge said words to the effect of “I am giving you the same warning about discussing your evidence that I gave you before, please don’t discuss it with anyone as you are still under oath”. The claimant acknowledged this. Paragraph 30 30 The claimant was asked if she wished to say anything in response to the application. She said “I want to speak with my lawyer”. The Tribunal refused and told the claimant that the Tribunal needed to hear from her what happened regarding contact with Mr Lennard and her sister the previous day. The claimant told the Tribunal she had not discussed her evidence with him and was careful not to do so. She told the Tribunal she sent the whole bundle to him, emails and the supplemental statement but had only discussed the cost of representation and this was why Mr Lennard was so familiar with the length and duration of the hearing . Paragraph 39 39 At 2.40pm the hearing resumed and Mr Lennard was by then in attendance. The Tribunal began by saying to him “good afternoon, you must be Mr Lennard”. Unprompted, having first apologised for being late, Mr Lennard addressed the Tribunal at some length. He informed the Tribunal that he only got his “instructions” late the previous evening having been sent 800 pages of the bundle and the supplemental documents. He said he had gone painstakingly through this and then had “needed to take instructions”. Paragraph 43 43 The Tribunal then explained the basis of the respondents’ application and that the Tribunal had already spent some time deliberating. He was asked what information he may have that might assist the Tribunal determine the application. He said he had taken instructions from the claimant’s sister and at no time did he discuss the evidence with the claimant. He said that he had “ gleaned from the bundle what had happened ” and this was his explanation for his ability to make detailed and what he described as “ common sense ” submissions to the Tribunal about the duration of the hearing and his other applications. It was not made clear how he knew to ask to use the notes the claimant had been making in order to re-examine her at the end of her evidence. Paragraphs 60 and 61 60 The claimant seeks to rely on the fact that she has not discussed in any detail “the evidence” with Mr Lennard and/or her sister. The claimant and Mr Lennard now submit that “instructions” also does not constitute a discussion of the case and the evidence, but the transmission of the documents and a discussion about covering Mr Lennard’s costs. We do not accept that submission on the balance of probabilities. The repeated references to a “conference” with Mr Lennard to take “instructions” indicate a discussion about the case and the evidence. We conclude that some reason for seeking his representation must have been given by the claimant to him and/or her sister, which we conclude could well have included the way in which cross-examination proceeded on day three and possibly also the claimant’s evident concerns about having to cross-examine the respondents. There must also have been some reference to the notes that she has made during her cross-examination as a request for permission to use these appeared in Mr Lennard’s email. 61 However, even if we take the claimant and Mr Lennard’s submissions at their highest, this will not be enough to absolve the claimant of any unreasonable conduct. Her conduct has introduced a lack of certainty and a lack of trust into the proceedings. She has, it seems, gone directly against an express instruction of the Tribunal. Mr Lennard has assisted her in this, knowing she was under oath at the time. Such consequences are precisely why warnings like this are given to a claimant and why they are so important. Even if we were to accept the claimant’s submissions at their highest, the Tribunal now has considerable uncertainty as to what extent the claimant has discussed her case with others while under oath and what was said. The procedural safeguards in place to ensure the fair administration of justice have been undermined by their actions. Claimant’s Argument

6. The claimant contends that there was a misapplication of Chidzoy v BBC because the ET failed to make clear findings of fact about whether claimant discussed her case or evidence while under oath. She contends that the ET wrongly assumed that note-taking equated to her discussing evidence. She also argues that the ET ignored the fact that the standard warning given to witnesses who were in the process of giving evidence was not to discuss their evidence. This instruction would not create a blanket ban on instructing a representative. The claimant argues that the ET compared claimant’s conduct to the circumstances in Chidzoy despite the material differences. The claimant was having discussion to obtain representation whereas in Chidzoy the discussions were with a journalist when the claimant in that case was already represented.

7. The claimant contends that the ET unlawfully interfered with her statutory right under Employment Tribunals Act 1996 s.6(1) to appoint a representative of her choice. In addition to this she was denied an opportunity to consult her newly instructed representative, not on her evidence, but on the strike out application, before responding. It is argued that the ET wrongly declared that the claimant’s representative was “not yet appointed,” and this caused her prejudice. In addition she argues that there was a breach of natural justice because the ET made adverse findings without allowing either oral or written evidence to be given by those the ET considered were involved in discussions with the claimant. She contends that the ET failed to consider the offered phone log evidence showing call durations. She contends that the ET failed to investigate facts “as far as necessary”.

8. The claimant argues that the ET misinterpreted the standard warning treating that warning as prohibiting all discussion of the case including to instruct a lawyer. On that basis the ET wrongly concluded claimant acted “directly against an express instruction.” Finally, the claimant argues that the ET failed to properly consider alternatives such as continuing the hearing and weighing credibility at the end. She argues that it is important that the ET apparently ignored its own acknowledgment of “considerable uncertainty” about what had happened. 1 st 3 rd and 4 th Respondents’ Argument

9. These respondents argue there has been no error of law or in the alternative that any alleged error made no material difference to the outcome. These respondents point to the 2013 ET Rules rule 37 which allows the ET to strike out a claim for unreasonable conduct or where a fair trial is no longer possible and argue that this was the position in this case.

10. In their argument these respondents relay on the following authorities Bolch v Chipman; Chidzoy v BBC; Bailey v Aviva; De Keyser v Wilson and Arrow Nominees v Blackledge . Bolch refers to the four factors that should be explored when a strike-out for conduct is being considered: (a) identify the conduct and decide that the proceedings have been conducted in the objectionable manner on the basis of that conduct (b) decide whether a fair trial is still possible (c) if a fair trial is not possible decide the remedy (d) consider the consequences of a strike out.

11. It is contended that discussion of a case while under oath justifies a strike-out. Such conduct, as the ET said led to irreparable damage to trust. That loss of trust can justify strike-out for abuse of process or wilful disobedience to the ET Orders. These respondents contend that the ET gave clear warnings not to discuss case while under oath. They contend that the claimant was found to have breached this by discussing the case and evidence with her sister and Mr Lennard. This had led to the ET finding that this amounted to an irreparable loss of trust, making a fair trial impossible. It is contended that the ET acted proportionately and lawfully under its case management powers.

12. In their direct responses to the grounds of appeal these respondents do not accept that there was any misdirection on Chidzoy because the ET made adequate findings. It was not necessary for the ET to understand the precise content of discussion. They contend that the claimant was not denied representation as Mr Lennard acted later that day and the ET acted cautiously to preserve fairness. In terms of natural justice the ET had sufficient oral and documentary evidence upon which to proceed. There was no requirement for witness statements or an adjournment the process that was adopted was proportionate. In dealing with the scope of the warning given to the claimant it is contended that the instruction covered both evidence and case discussions. The claimant clearly breached this instruction. Dealing with the proportionality of a strike-out it is set out that ET properly considered alternatives and rejected them as the damage to trust had made a fair trial impossible. 2nd Respondent’s Argument

13. In dealing with Ground 1 the 2 nd respondent argues that the ET did not need to identify the specific evidence discussed; any discussion was sufficient to establish unreasonable conduct. This is because Chidzoy confirms that discussing evidence breaches trust regardless of details or identity of the person involved. On that basis there was no misdirection by the ET. Further to that even if the error existed, it was immaterial as a strike-out was inevitable.

14. In respect of Ground 2 it is contended that Section 6(1) gives a right to representation. It does not give a right to unrestricted consultation during the course of evidence. In this case the ET had allowed representation and any restriction it imposed was temporary and it was also justified to prevent contamination of the evidence.

15. The 2 nd respondent’s approach to Ground 3 is to argue that the ET adopted a fair procedure consistent with Rule 41 and overriding objective and adapted to the circumstances. The claimant, it is argued, remained under oath and an gave account under oath; further steps by the ET would add no value and cause delay.

16. As to Ground 4 it is contended that the instruction to the claimant not to discuss the evidence or the case was clear and repeated four times. The claimant had even sought clarification of the instruction and was told explicitly not to discuss evidence with anyone.

17. Finally in respect of Ground 5 the 2 nd respondent contends that the strike-out was proportionate given there was found to be an irreparable loss of trust and in consequence the impossibility of fair trial. The ET had considered alternatives but had rejected them because the conduct showed a deliberate breach of the ET’s instruction to the claimant. The Law

18. Employment Tribunals Act 1996 (ETA) section 6(1) provides: (1)A person may appear before an [employment tribunals] in person or be represented by— (a)counsel or a solicitor, (b)a representative of a trade union or an employers’ association, or (c)any other person whom he desires to represent him.

19. The Employment Tribunal Rules 2013 rule 37 under the heading “Striking Out” provides so far as is relevant:

37. — (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c)for non-compliance with any of these Rules or with an order of the Tribunal. ----------- (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.

20. The Employment Tribunal Rules 2013 rule 41 under the heading “General” provides so far as is relevant:

41. The Tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The following rules do not restrict that general power. The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.

21. Bache v Essex County Council [2000] ICR 313 makes it clear that section 6(1) of the ETA means that the ET has no power to dismiss a representative. It is entirely the choice of the party as to whom should represent them.

22. In Arrow Nominees v Blackledge [2000] Butterworths Company Law Cases 167, there was a shareholders dispute. At first instance the Judge found that one of the petitioners had forged documents which were then disclosed for use at trial. The Judge had refused an application form the respondent’s that the petition should be struck out on that basis. In the Court of appeal Chadwick LJ said this at paragraph 54: “---But where a litigant’s conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled, indeed, I would hold bound, to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine proceedings against him.” Chadwick LJ went on to indicate that this is because of the substantial risk of injustice when a party’s objective is to prevent a fair trial. In addition the point is made that a fair trial includes conducting it without undue expenditure of time and money. Questions to be asked are whether it is fair to the other parties and whether it is in the interests of the administration of justice generally to continue a trial.

23. De Keyser Ltd v Wilson [2001] IRLR 324 the EAT Lindsay P presiding states the importance of asking the question as to whether a fair trial is still possible when considering a strike out. Bolch v Chipman [2004] IRLR 140 set out that in deciding to strike out (under what was at the time of this decision rule 37) the ET had to first identify the conduct and conclude that the conduct in question is not just unreasonable behaviour, but that a party has behaved unreasonably in conducting proceedings. Secondly whilst such conduct can lead immediately to a debarring order, such as when conduct is deliberate and contumelious disobedience of an order, ordinarily what is required is a decision as to whether a fair trial is still possible. The third point made is that if a fair trial is not possible the ET is still required to go on to consider the remedy which will be appropriate and that in the right circumstances a strike out will not be correct if a lesser remedy can be applied in the circumstances. Finally, the judgment deals with matters which in reality only apply to the case of a respondent.

24. Chidzoy v BBC [2018] UKEAT/0097/17/BA where HHJ Eady QC (as she then was) reviews the authorities and follows the approach taken first in De Keyser and then in Bolch . However, at paragraph 24 she sets out this in addition: When an ET is satisfied that a Claimant has conducted the proceedings unreasonably (or scandalously or vexatiously), it should not move to strike out the claim when firm case management might still afford a solution - in some cases, the objectionable conduct may not be irreversible, see Bennett v Southwark London Borough Council [2002] IRLR 407 CA (a case in which the claim had ultimately been struck out by a second ET, the first having considered it was bound to recuse itself given the nature of the conduct in question). In order to determine whether irreparable damage has been done, the ET would need to assess the nature and impact of the wrongdoing in issue, to consider whether there was, in truth, any real risk of injustice or to the fair disposal of the case, see Bayley v Whitbread Hotels UKEAT/0046/07 (16 August 2007, unreported). It will, for example, be a very rare case in which it would be appropriate to strike out a case at the end of a trial; in such circumstances, it would, in almost all cases, be more appropriate for the Tribunal to dismiss the claim in a judgment on the merits, which could take account of the wrongdoing in issue, in the usual way (and see the observations to this effect in Zahoor and Ors v Masood and Ors [2009] EWCA Civ 650 ).

25. In Bailey v Aviva Employment Services [2025] EAT 109 His Honour Judge Auerbach adds an emphasis that where a claimant’s conduct has potentially imperilled a fair trial, consideration should be given to managing that proportionately if at all possible. The claimant has also referred to the first instance decision in Chidzoy I do not consider this as a relevant authority given that the matter has been settled by appeal.

26. In Hughes Jarvis Ltd v Searle [2019] 1 WLR 2934 in an appeal against an order for committal where a witness had discussed matters with a third party overnight whilst still being subject to the oath. The Court of appeal made it clear that there was, technically (because of the requirements of the CPR), no Order upon which the committal could bite. However, the court made obiter comments as follows: “Whether what occurred amounted to a direct interference with the administration of justice would obviously depend on what was discussed, the reasons for it and the effect which it had on the trial process”

27. I then consider Cox v Adecco [2021] ICR 307 . HHJ Tayler at paragraph 28, drew the following proposition from the case law: “ (7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; -------. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case ---"

28. Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327 indicates that it is not required that unreasonable conduct should mean that a fair trial was not possible at any stage, it is sufficient that a fair trial is not possible within the time allocated by the ET. The then EAT President Choudhury J comments: “ what is required in terms of unreasonable conduct is “deliberate and persistent disregard” of the required procedural steps”

29. The claimant has referred to two further authorities, these are not directly on point but do express general principles which I accept De Haes and Gijsels v Belgium 919970 24 EHRR and Timbo v Greenwich Council for Racial Equality [2012] EqLR 1010. The former demonstrate that equality of arms is an important aspect of ECHR article 6 rights to a fair trial; the latter that it is inappropriate to dismiss a discrimination case after only hearing from the claimant. The latter is however based on a dismissal based on a claimant’s case being misconceived and is unrelated to conduct. Discussion

30. Ground 1 contends that the ET approached Chidzoy incorrectly. It appears to me that in most circumstances the ET is required to make a finding as to the actual conduct involved. In respect of a breach of the instruction not to discuss evidence that would mean that it had to consider what had actually been discussed by the claimant and her representative. To strike out a case, particularly when only the claimant’s evidence had been heard, is without doubt draconian. It is a radical step which should only be taken in the clearest of circumstances. Searle demonstrates that what is being protected is the proper administration of justice. It is the interference with that administration of justice which is to be considered and that requires evidence of what was discussed.

31. I do not accept the Miss Quigley’s argument that it is not necessary to identify the content of discussion for the purposes of the four steps set out in Bolch . Without knowledge of that content, it is not possible to decide whether there has been the necessary interference. Further, without knowledge of that content it is not possible to properly know whether a fair trial is still possible or not. In addition, without knowledge of that content it is not possible to explore whether there is a realistic alternative to strike out. All of these are steps that are required by the approach in Bolch . However, the real question in my judgment is whether, despite that, the circumstances in this case can meet the requirements of De Keyser . Was the ET entitled to conclude that the conduct is deliberate and contumelious without considering the content of the discussions.

32. In this case the ET did not, and in fact could not (unless it accepted the claimant’s account), find the content of the discussion. This was a private discussion of which the ET would not hear any evidence except from the participants. The respondents contend that to require a tribunal to make such a finding would be unfair to the respondents, because they could not provide any contrary evidence of the conversation. Miss Quigley for the second respondent contends that such a requirement was not imposed in the Chidzoy case, all the ET had to do there was reject that claimant’s account.

33. In those circumstances it is contended that the ET is entitled to consider that simply the fact of a discussion when the claimant has been ordered not to discuss the case is sufficient for the ET consider this a breach of its Order. The respondents contend that it was inappropriate for the claimant to discuss the case at all because of the risks that her evidence would be influenced by her doing so. The respondents argue that there has been a loss of trust because the case has been discussed. I will return to the content of the warning in due course. However, in any event, it appears to me that there is no automatic loss of trust in such circumstances. Discussion of the case could take many forms from the detailed to the innocuous. An instruction to a lawyer along the lines of “please read the papers in my case and come along and help me when my evidence is finished” would not amount to an interference with the administration of justice whereas “tell me how to improve my evidence tomorrow” clearly would. Without knowledge of the content of the discussion it is not possible to clearly understand whether there is actually a problem.

34. Therefore, the ET should seek evidence of the content of the discussion, however the ET is also then entitled to reject that evidence. If the ET does reject that evidence then it can make no finding as to the content of the discussion. However, the claimant is not correct to say that the ET is then not making clear primary findings about the discussion and, as a result, is precluded from striking out for conduct in such circumstances. Where does that leave the ET; it is faced with deciding whether there has been a prohibited discussion but only has the rejected evidence of the claimant available to it. Is the ET then entitled to say then that this was deliberate and contumelious conduct?

35. The ET would, in those circumstances, have decided that the claimant was dishonest in her assertion as to the content of the discussion. Such an assertion would be specifically related to providing the ET with information about compliance with the instruction that it had given. Failure to give an honest account would entitle the ET consider that was a deliberate action to mislead. Such conduct would without doubt be described as contumelious. A decision on that issue means, therefore, that the ET would be entitled to apply the De Keyser basis for strike out based on a deliberate disobedience.

36. The respondents argue, based on the ET’s findings at paragraphs 60 and 61 that the ET did find facts and rejected the claimant’s evidence and so there would be no different outcome even if it had made an error in approaching this matter based on the Bolch factors. I will return to that argument in due course after I consider the grounds of appeal related to the process by which the ET reached this decision.

37. That decision raises a further potential problem, which does not necessarily apply in the circumstances of this case, but highlights how these types of situations are to be approached. In some respects it also relates to ground 2 along with this first ground. If a claimant is entitled, despite being in the course of her evidence, to instruct a representative how is a tribunal to approach such a situation where legal professional privilege is involved? As part of ground 1 the claimant contends that in Chidzoy the claimant was permitted to seek advice from her lawyer about the strike out issue.

38. The content of the instruction “not to discuss” which is given to witnesses, in short and long adjournments, where the witness remains under oath, varies from Judge to Judge. Sometimes a single Judge will vary the instruction so that a particular witness can understand what is required. However, it is important to recall the reason for such an instruction. The purpose, as above, is to ensure the proper administration of justice. In the case of a witness that is achieved by hearing their evidence in the absence of any outside influence. Influence on evidence ranges from the innocent, a subconscious recognition of a comment made by someone about the evidence, or the pernicious, the coaching of a witness in their evidence. It is that harm which the instruction is intended to avoid. In some respects this relates back to what I have set out above that the content of discussion is important. If the discussion is not capable of influencing the evidence then it cannot in reality be in breach of the purpose of the warning.

39. A party must be allowed to challenge the discussion if it considers it may be in breach of the instruction. However, where there is a professional lawyer, questions of legal professional privilege and conflict of interest arise. Faced with those circumstances a tribunal would normally expect that the lawyer would not give evidence but, also, would not mislead the tribunal in submissions (which would amount to professional misconduct). Alternatively, the lawyer could become a witness but, in such circumstances, would relinquish the role as representative. Here, the ET was dealing with circumstances where the representative was in the same position as a lawyer but was not qualified as a lawyer in this jurisdiction and therefore the professional codes did not specifically apply.

40. I make this much clear, I reject the proposition that the claimant would be entitled to discuss her evidence when instructing a representative despite the fact that she was under oath at the time. The purpose of the instruction does not allow for that. In respect of this and Ground 2 the respondents argue that the right to representation does not give the right to consultation during the course of evidence. As a proposition I agree with that insofar as it goes. However, the claimant is correct to indicate that her right to representation for a matter which arises during the course of a hearing should be respected. In practice, with represented parties, it is often the case that, if during the course of evidence a new matter arises, a Judge will give permission to a lawyer to consult with their client on the particular issue. The Judge might give instructions that this is the only matter to be discussed but nonetheless allow the discussion to take place. This is part of a fair trial, if, for example a document is produced which was not disclosed earlier, it is only fair that the party in question discuss that document with their lawyer.

41. In this case what was being proposed was a strike out, as I have already described it, a radical step. This was a situation with a litigant in person being asked to deal with an application to strike out her case because of conduct on the fourth day of a hearing. It is hard to imagine a more glaring example of the “rabbit in the headlights” ( Cox v Addecco ) situation for a claimant. This was not an issue related to the facts of the case. The claimant was suddenly faced with an aspect of law which would not have formed part of her preparation. In addition she was required to argue this new point against two experienced counsel. In those circumstances it appears to me that it would only be proper to allow the claimant an opportunity to consult a representative on that point . In Chidzoy access to the lawyer was allowed to consult with that claimant, however the lawyer in that case was not a participant in the discussion.

42. The problem arises here that the representative was involved in the discussion. That representative, although qualified overseas, was not necessarily bound by the same professional codes that a UK lawyer would be. The ET therefore had to consider how to approach this set of circumstances. A purely lay representative, without the experience of employment law that the claimant’s representative had, would not be able to effectively advise. Those circumstances would suggest that not allowing the claimant to contact that representative before providing an account of events would be a proper case management decision. In addition, taking evidence from such a witness would be appropriate to comply with the obligation of the ET to attempt to establish the content of the discussion.

43. However, this representative of the claimant would have been able to advise her. Is the fact that this representative was a participant in the discussion a reason to prevent this representative giving the claimant advice before the claimant deals with the respondent’s application for a strike out? As set out above a UK lawyer should be permitted to do so if not giving evidence. That said, without in anyway suggesting that the claimant’s representative does not apply the same ethical standards that a UK lawyer would, the ET could not approach matters as if the representative is bound by the same codes of conduct. Because of that the ET could not simply rely on the representative being an “officer of the court” in the way that it might normally. The respondent argues that this is a reason why the claimant should be required to give her account before taking advice. Further, the respondents argue that the giving of “advice” is not a realistic way to approach this issue. The respondents contend that all that was required is that the claimant give an account, that did not require advice. It is important to note in respect of this particular question that the claimant specifically asked if she could speak to her “lawyer”.

44. I reject the narrow definition of representation as being an advocate in court. Representation includes the giving of advice and the preparation along with the presentation of a case or issue. Part of giving advice is to assist with which evidence that might be given is relevant or irrelevant, but also to advise that a particular element of evidence to be given might require an expansion of detail in order to provide an appropriate account. In my judgment to prevent the claimant from taking such advice when she had requested to do so could only be an appropriate step if the ET had specific reason to prevent it. In my judgment the fact that the representative is a lawyer but not qualified in the UK is not, of itself, such a reason. The difference between the officer of the court and the claimant’s representative can be met by the approach the ET takes to submissions, they do need to treat those submissions as not designed to mislead, they can treat them with as much caution as they deem necessary.

45. The respondents argue that as the claimant states that she would have given the same account to the ET, that means that the ET outcome would have been the same. This is a simplistic approach, although the account may be the same it is clear that there would have been additional elements of evidence given, that can be seen from the supplemental bundle documents. Although the respondents argue, for instance, that the claimant’s reaction to providing her phone logs was indicative of dishonesty to the ET, her entire approach may have been different had she had advice beforehand. Not to allow the claimant to be represented on that point, by being provided with advice, prior to the claimant giving her account is in my judgment to prevent representation. The ET may have corrected itself in stating that the claimant was not yet represented, but in my judgment it prevented her from being represented in what was a crucial matter. It seems to me that this could have made a material difference to the outcome of the respondents’ application to strike out.

46. This decision is sufficient to dispose of the appeal as on that basis the strike out must be set aside. However I shall go on to consider the remaining grounds in deference to the careful and detailed arguments presented by the parties.

47. Ground 3 contends that there was a breach of natural justice. It appears to me that there are two potential courses for the ET when faced with this sort of situation. The first is to take the claimant’s position at its highest, which means accepting what she says was discussed and what was not. The alternative is for the ET to make findings of fact. It is of course a matter of case management which approach it takes. If it chooses the latter course it must allow the opportunity for evidence to be given in some form and as I have said in respect of ground 2 it must also allow representation if that is sought. The respondents’ argument is that the claimant remained on oath and therefore was giving evidence when being asked questions by the ET. It seems to me this is to fail to recognise the reality of the situation from the claimant’s perspective. The claimant would not have considered this a moment when she was giving evidence unless that was made clear to her that was what she was doing. It would, however, have been open to the ET to limit the evidence to the claimant. In the circumstances of this case if Mr Lennard was going to provide the advice then it would not be appropriate for him to give evidence because of the conflict that produces. However, the claimant’s sister was also said to be a participant in the instruction of Mr Lennard. It was clear on that fourth day that this case would not conclude in the five days allocated to it. If the case was to continue it would be a part heard listing. In those circumstances, where there was still a further day of the listed hearing, and where the risk for the claimant was the end of proceedings, allowing the sister to be called to give evidence was an option. The respondents’ argue that the ET was patient, it waited for Mr Lennard so that he could make submissions. However, I cannot say the ET was not applying natural justice to limit the evidence on the issue to the claimant in these particular circumstances. The failure of natural justice was to take evidence from the claimant without allowing her the opportunity to take the advice she had requested.

48. Ground 4 seems to me of some general importance . As a practical matter it might be useful for a Judge, as part of giving the instruction, to explain to a witness the purpose of the instruction and to indicate that it is possible to be influenced subconsciously so that the instruction is properly understood. Instructions not to discuss “the case” may be too broad a restriction given the purpose of the warning; the instruction aims to prevent influence on evidence, not all procedural discussions. In this case, whatever the express instruction was, if it went too far beyond protecting the administration of justice, then it cannot be said to be a reasonable instruction. However I do not accept that in respect of Ground 4 the ET could be considered to be at fault given the findings it made. On the evidence it heard it made a factual finding that the claimant had discussed her evidence, that would have fallen within the narrow meaning of the instruction as the conduct would have undermined its purpose. That finding meant that the ET would have been correct to find, had it followed the correct procedure, that the claimant had gone directly against an express instruction.

49. Ground 5 in my judgment if the ET had undertaken the steps to obtain the evidence and come to the same factual conclusions it would have been perfectly justified in striking out the claimant’s case. It would have been in circumstances which were virtually on all fours with the Chidzoy decision. A claimant in the course of evidence cannot discuss evidence. As I set out above, the right to representation does not give the right to consultation during the course of evidence, it would be likely to amount to a breach of trust sufficient to make a fair trial impossible.

50. On that basis Ground 1 is dismissed, because the ET is permitted to take evidence and reject an account given, and that accords with the guidance in Chidzoy . Ground 2 is upheld; the claimant was prevented from taking advice on the issue of the strike out application and therefore deprived of representation, insofar as she was prevented for taking advice ground 3 is also upheld. and Grounds 4 and 5 are dismissed. I make it clear that, on the basis of my Judgment I am making no decisions about the factual matters which formed the basis for the application to strike out and there is nothing in my Judgment to prevent the respondents from renewing that application if they consider it appropriate to do so.

51. Sinclair Roche &. Temperley v Heard [2004] IRLR 763 presumes that a remitted matter will go back to the tribunal panel that previously heard the case unless there is a reason not to. The respondents submit that that presumption should apply here. The claimant argues that the case should go before a different panel when remitted. The respondents contend that the proportionality test is met because this panel are acquainted with all the facts, they have spent 4 days on the case and are equipped to deal with the case efficiently. The respondents argue that there is nothing to point to the tribunal being anything other than professional in their approach to this case. I am afraid I have to disagree that it ought to be remitted to the same panel, whilst I accept all of the above, this panel has made significant findings about the credibility of the claimant and has expressed a lack of trust in her and her evidence. With the best will in the world it will be difficult for the same panel to start again without calling on that previous impression, this matter shall be remitted to a different tribunal.