Although normal practice in Scotland is for witnesses to be excluded from the tribunal room unless they have been given permission to be present, the Employment Appeal Tribunal (EAT) held in E & O Laboratories v Miller that as witnesses are generally entitled under statute to be present, tribunals in England and Wales did not have to comply with the procedure that was normally followed in Scotland.

Basic facts

Ms Miller, the claimant, gave evidence on the morning of the first day of the hearing. During a break she was warned not to discuss her evidence with anyone else as she was under oath. The first witness for the employer, Ms Lucey, then gave evidence while two other witnesses for the employer were present in the room.

During the morning break Ms Miller overheard Ms Lucey and the two other witnesses discuss the evidence in one of the witness rooms. She then overheard a further conversation between them during the mid-afternoon break.

In Scottish tribunals, normal practice is for witnesses to remain outside the tribunal room unless they have been given permission to be present. As the employer had not made an application to allow the witnesses to stay in the room, Ms Miller’s representative asked the tribunal to strike out the employer’s defence under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 on the basis that their conduct had been “unreasonable”. 

Relevant law 

Rule 37(1)(b) states that a tribunal may strike out all or part of a claim because the way in which the proceedings have been conducted has been “scandalous, unreasonable or vexatious”. 

Rule 43 states that tribunals may exclude anyone who is to appear as a witness until such time as that person gives evidence if it considers it in the interests of justice to do so. 

Tribunal decision

The tribunal agreed that the witnesses should not have been permitted to remain in the room while Ms Lucey gave her evidence as it contravened normal Scottish practice. As a result, they were no longer “impartial”. For instance, Ms Miller had overheard them saying that “they would say the same thing” in relation to a conflict between Ms Miller ‘s evidence and that of Ms Lucey.

In addition, the witnesses should have realised, following the warning given to Ms Miller, that Ms Lucey was under the same restriction. It therefore agreed to strike out the employer’s defence.

EAT decision

Overturning this decision, the EAT pointed out that the wording of Rule 43 assumes that a witness is entitled to be present in the tribunal room. Indeed, in England and Wales the practice is to allow witnesses to be present, unless excluded. In this case, no one made an application to exclude the employer’s witnesses. Nor were they excluded by the tribunal on its own motion.

In deciding whether it was “unreasonable” or not for the witnesses to be present, it was important to bear in mind that the conduct complied with Rule 43 even if it did not comply with Scottish practice.

As for the failure of the witnesses to heed the tribunal’s warning, the EAT held that there was no rule of law that prohibits discussion. As such, they could not be blamed for what they did. In any event, the employer’s legal representative was not with them during the breaks when they discussed the evidence and did not know they were discussing it.

Finally, with regard to the issue of whether the witnesses altered their evidence, the EAT held that, as the tribunal accepted it had been truthful, it was not possible to say whether there was anything “unreasonable” about the earlier discussion.

It therefore remitted the matter back to the tribunal.