Presence of witness at hearing – Scots practice
The Employment Appeal Tribunal considered an appeal where a claim had been struck out because the Appellants’ witnesses had sat in during the evidence. The EAT concluded that notwithstanding Scottish practice, the terms of Rule 43 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 presupposed the right of a witness to be present in the Tribunal room unless excluded by the ET. In this situation the EAT considered that the Appellants’ legal representative had not conducted the case unreasonably despite her failure to follow Scottish practice. The EAT likewise considered that where witnesses had discussed another witness’s evidence during a break in evidence and while she was on oath, this could not be said to be unreasonable conduct under rule 37(1)(b) because the EJ had not admonished the witness not to discuss her evidence while on oath. The EAT held that she could not be held to appreciate the sensitivity of the matter and hence the EAT concluded that the conduct in question was not unreasonable under rule 37(1)(b). The EAT also concluded that there were insufficient grounds to justify strike out under rule 37(1)(e) as there was no evidence to indicate that the hearing had been contaminated by perjured or partisan evidence.
Lord Summers
[2019] UKEAT 19 – 0007 – 2108
Bailii
Scotland
Employment
Updated: 02 November 2021; Ref: scu.642758