BBC journalist loses employment tribunal appeal after discussing case with reporter

Sally Chidzoy, a BBC home-affairs correspondent for some 30 years, was overheard discussing her case with a local newspaper reporter during a break in the proceedings.

The Employment Appeal Tribunal upheld the tribunal’s judge’s decision to strike out her claim for “unreasonable conduct”.

‘Unreasonable conduct’

The EAT heard that during a during a short break in the course of giving evidence at the full merits hearing of her claims, the claimant Ms Chidzoy participated in a conversation with a journalist, which included some discussion about the case and about a particular aspect of the claimant’s evidence given shortly before the break.

Aspects of this were overheard by one of the BBC’s witnesses and by two members of the respondent’s legal team, who brought the matter to the attention of the ET.

Allowing the claimant to give instructions to her legal representative and to provide an initial account of what had taken place, the ET then adjourned for a long weekend to enable the parties to provide statements about this matter.

Upon the resumption of the hearing, the respondent applied for the claim to be struck out due to the claimant’s unreasonable conduct of the proceedings.

Concluding that the claimant had indeed been party to a discussion about her evidence, in “flagrant disregard” of the warnings given by the ET on six separate occasions that she must not do so when still giving evidence, the ET concluded that it had irretrievably lost trust in the claimant and could no longer fairly hear her case.

It considered whether there were any alternatives to striking out the claim but concluded that there were none and therefore struck out the claimant’s case.

‘Draconian act’

However, Ms Chidzoy appealed, arguing that the striking out of a claim was a “draconian act” - a power to be exercised in accordance with “reason, relevance, principle and justice”.

She complained that the ET “erred” in its conclusion that she had engaged in unreasonable conduct, as it failed to consider whether any information that had passed between them was capable of corrupting the claimant’s evidence, or to assess whether there was a substantial risk that the claimant’s evidence may have been so tainted or corrupted.

It was also submitted that in principle, there was nothing wrong in talking to press during an ET hearing: the claimant had a right to freedom of expression under Article 10 of the European Convention on Human Rightsand there was a wider public interest in justice being dispensed publicly, in particular, having regard to the freedom of the press to report court and tribunal proceedings fully and contemporaneously.

Dismissing the appeal, the EAT held that the ET had correctly applied the test for striking out a claim, namely that the proceedings had been conducted unreasonably, a fair trial was no longer possible, and that striking out was the appropriate sanction.

‘No alternative’ to striking out

In a written judgment, Her Honour Judge Eady QC said: “Adopting an entirely fair process, it had been entitled to make the findings it did as to what had taken place and had permissibly concluded that the claimant had thereby unreasonably conducted the proceedings. The ET had gone on to consider whether it could still conduct a fair trial of the claimant’s case but, having concluded that trust had broken down, had correctly concluded it was not. Asking itself whether it was proportionate to strike out the claim, the ET had considered whether there were any alternatives but had concluded there were none.”

She added: “Having correctly identified and addressed each of the relevant questions in these circumstances, this ET reached entirely permissible conclusions that led it to determine that the claimant’s case must be struck out. It did so, having undertaken a fair procedure to establish the facts and from a perspective that meant it was best placed to form the assessment as to the significance of the claimant’s conduct for the fair disposal of her claim. Having reached the conclusion it did, as to the irretrievable loss of trust arising from the claimant’s conduct, the ET correctly held that there was no alternative to striking out the claim. Accordingly, the appeal against its judgment in that regard must be dismissed.”