Vulnerable Witnesses – Tribunal Procedures and Case Management

Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary

Can a Claimant in a sexual harassment case succeed where the Respondent has not had an opportunity to cross-examine them about their allegations?

Possibly, but only if the employment tribunal considers carefully what procedures it should adopt to ensure a fair and just substantive hearing, according to the Court of Appeal in Duffy v George.

This case – involving a Claimant bringing a sexual harassment case who said she was too frightened to attend a hearing and be cross-examined by a Respondent who was acting in person – sets out useful guidance for how employment tribunals should deal with vulnerable witnesses.

The Court of Appeal, in allowing the appeal and remitting the case, reminded tribunals that they have a wide discretion when it comes to designing fair procedures for substantive hearings (although this discretion must be exercised judicially). Procedures for handling vulnerable witnesses could include, for example, (1) separate hearings, where each party gives evidence to the tribunal in the absence of each other, (2) each party submitting ‘cross examination’ questions to the tribunal, for the tribunal to put to the other party, and (3) witnesses giving evidence to the tribunal behind screens, as happens in the criminal courts.