Vexing claim

Force One Utilities Ltd v Hatfield (IDS 881)

Rule 18(7)(c) of the 2004 Employment Tribunal Regulations allows tribunals to strike out a case or a response to a case if the proceedings have been conducted in a way that is “scandalous, unreasonable or vexatious.” In Force One Utilities Ltd v Hatfield (IDS 881), the Employment Appeal Tribunal (EAT) said the tribunal was entitled to strike out an employer’s defence after their witness threatened the claimant with violence.

Basic facts

Mr Hatfield represented himself in a claim against his former employer for unfair dismissal. After an adjournment on 5 January 2007, the case was relisted for 26 April, but adjourned again to allow Mr Hatfield to get legal advice about a proposed settlement.

Mr Hatfield then claimed that one of the employer’s witnesses, Mr Shuter, threatened him (in the presence of one of his witnesses) outside the tribunal building saying that he should be careful “how he slept at night”. He also challenged Mr Hatfield to a fight. The tribunal members themselves saw Mr Shuter block the entrance to the car park with his own car, inconveniencing other vehicles for five or ten minutes.

When the case was relisted again for 27 September, Mr Hatfield told the tribunal that he still felt nervous and afraid. At the hearing the next day, Mr Shuter denied the incident in the car park and the threats to Mr Hatfield. Given that they had personally witnessed the incident in the car park, the tribunal members rejected Mr Shuter’s evidence and refused to hear his barrister’s submission to the contrary.

Tribunal decision

The tribunal then adjourned the hearing to consider whether or not to strike out the employer’s response to Mr Hatfield’s claim under rule 18(7)(c).

Although the employer had agreed to withdraw Mr Shuter as a witness, and Mr Hatfield himself had said he was prepared to continue with the case, the tribunal decided that he was still clearly very afraid of Mr Shuter and this would affect his ability to give evidence. On that basis, the tribunal decided that it was impossible to conduct a fair trial and struck out the employer’s response.

EAT decision

And the EAT agreed. It said that only the tribunal could appreciate the impact that the intimidatory conduct had had on the claimant and therefore only it could assess whether a fair trial was possible.

As for the tribunal’s decision that Mr Hatfield was too intimidated to give evidence again even though Mr Shuter would not appear and much of the evidence had been given, the EAT said that there were still issues that had to be decided and Mr Hatfield would still have had to carry out cross-examination. The fact that some evidence had been given was just one factor for the tribunal to consider.

It disagreed with the employer’s argument that it was the tribunal’s job to carry out a “balancing exercise weighing up the adverse effect on the claimant with the detrimental effect on the company if they were to be denied the opportunity of defending the case”. Instead it said that once a tribunal decides that someone is “sufficiently intimidated” with the result that their evidence will be affected, then the only proportionate response is to bar the other party from participating.

It agreed with the employer that the tribunal should have allowed their barrister to make submissions about the car park incident. However, it concluded that as Mr Shuter had not claimed “to have had an identical twin or anything of that kind ... we think that the error had no real significance” and that it was “fanciful” to think that it would have changed their minds.

As for the argument that Mr Shuter was only a witness and the employer was not therefore liable for his conduct, the EAT pointed to rule 18(7)(c) which just says that the unacceptable conduct must be “by or on behalf of” a party. It concluded that, as a director of a sister company, Mr Shuter was “plainly directing matters on behalf of the company”.