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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
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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