Singh v Reading Borough Council  IRLR 445; UKEAT/0540/12; Court of Appeal  IRLR 820, 25 July 2013; (2013) EMPLR 021
Employee Tribunal - witness statements - improper pressure12 February 2013
Employment Appeal Tribunal (EAT)
Cox J, Mr A Harris and Mr S Yeboah
A Claimant cannot rely on witness statements prepared for employment tribunal proceedings to found a constructive dismissal claim. But they can rely on pressure an employer put on a witness to make statements adverse to the claimant.
S, a head teacher, complained in a tribunal of a campaign of racial harassment, discrimination and victimization by parents, staff, governors, council employees and others. H, a witness for the employer prepared a statement adverse to S. S believed this was the result of improper pressure from the employer. S resigned, saying H’s witness statement was the last straw and she had been constructively dismissed.
The EAT held that actions in preparation for a tribunal hearing, including the way a party adduces evidence for the trial, are absolutely privileged and cannot form a ground of a legal claim. The EAT added that, at the hearing of her discrimination claim, cross-examination questions on the circumstances in which H’s witness statement was prepared would be impermissible.
The Court of Appeal disagreed. The content of H’s witness statement was not part of the constructive dismissal claim: it was the alleged pressure from the employer on H that gave rise to the constructive dismissal claim that were relevant to the constructive dismissal claim. That claim would have been just as valid if H had resisted any pressure in respect of her witness statement. Using underhand and improper means to defeat a discrimination claim destroys trust and confidence whether or not the improper means succeeded. S was therefore entitled to pursue her allegation that improper pressure had been put on H when preparing H’s statement.
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