Labour & European Law Review Weekly Issue 334 28 August 2013
Tribunals have wide powers when hearing cases. In Duffy v George, the Court of Appeal held that they must use those powers to ensure they deliver procedural justice, especially when the case turns on the credibility of the evidence (which amounts to one person’s word against another) and the party making the allegations does not attend the hearing.
Ms George brought claims of sexual harassment in July 2009 against a colleague, Mr Duffy. The two had worked together at Taylor Wimpey Homes, although she had resigned in March and he was dismissed shortly afterwards.
Having settled her claim against the company shortly before the hearing which was due to take place in October 2010, Ms George received a message from Mr Duffy enclosing a newspaper horoscope for her star sign. This said that the reader might want to come clean about a matter but that if she did she would be “right to suspect there is trouble in store". Mr Duffy then added: "How very appropriate", but did not sign the message.
Ms George’s solicitors wrote to the tribunal asking it to make an order that she did not have to attend to give evidence because she was too scared to do so. The tribunal explained that her case could be considered entirely on the basis of her written evidence, but that "the degree of weight that can be attached to a written statement will not be as great [as] if she had been subjected to cross examination.”
Decisions of lower courts
The tribunal dismissed most of her claims, except for two incidents which Mr Duffy had admitted - sending sexualised text messages and, on Valentines Day, a vibrator. It said that these constituted sexual harassment.
The EAT dismissed Mr Duffy’s appeal on the basis that the rules were wide enough to allow tribunals to admit evidence, even though the claimant was not available for cross examination. The test was one of fairness, as illustrated by the case of McBride v British Railways Board and ors in which an employee had not been allowed to put questions to a witness called by an employer. Although that was unfair, there was "ample material” in this case for the tribunal to conclude that the conduct in this case was unwanted.
Mr Duffy appealed, arguing that it was unfair to lose a heavily-disputed, fact-sensitive case when he had consistently denied all the allegations and did not get the chance to cross-examine Ms George (who bore the burden of proof) as she had not attended the hearing.
Court of Appeal decision
The Court of Appeal agreed that the tribunal made a procedural error by not holding a pre-trial review to consider the options available in the light of Ms George’s decision not to attend.
It held that tribunals must use their wide powers to ensure they deliver procedural justice, especially when the case turns on the credibility of the evidence (which amounts to one person’s word against another) and the party making the allegations does not attend.
The court in McBride accepted that there were grounds for re-hearing a case when the person defending themselves had been denied the opportunity to cross examine a witness, particularly when there were no other witnesses and no other evidence.
The tribunal should therefore have explored other possibilities in this case, such as holding separate hearings at which each side gave evidence in the absence of the other; allowing each side to submit questions in advance for the tribunal to submit to the other party at that hearing; and allowing witnesses to give evidence from behind a screen.
It therefore remitted the case for re-hearing before a differently constituted tribunal.