If an employment tribunal decides to exclude part of a witness statement under Rule 43, is that part excluded from public inspection under Rule 44?
Yes, held the EAT in Compass Group plc v Guardian News and Media Limited. At a preliminary hearing in a whistleblowing case, the parties agreed to deal with only two of five preliminary issues, leaving other issues for a final hearing. The parties agreed to 'excise' parts of the Claimant's statement dealing with 'whistleblowing' matters irrelevant to that hearing, and the Employment Judge read the excised statement. It was unclear whether the Employment Judge made an order under Rule 43 to exclude the 'excised' parts of the Claimant's statement from evidence (and public inspection under Rule 44), or whether he simply decided not to pay them any attention. A reporter for the Guardian asked to inspect the parties' entire witness statements, the Employment Judge agreed.
The EAT remitted to the Employment Judge for reconsideration as to whether he had excluded the 'excised' parts of the statement under Rule 43 or decided to pay no attention to them. The EAT noted that "what is required for inspection to be precluded by Rule 44 is simply that an order or decision has been made that parts of a witness statement should not be admitted in evidence", whereas, if an employment tribunal decides to pay no attention to parts of an admitted statement, those parts would be open to public inspection.
Therefore, parties contesting whether statements (or parts of them) should be excluded from evidence and public inspection should seek (or oppose) orders under Rule 43 to that effect.