Ms George complained to the Employment Tribunal that she was sexually harassed by Mr Duffy in their workplace. She won her claim against him for sexual harassment, despite not having been present at that hearing. The tribunal had granted an order that she did not have to attend as she felt intimidated by Mr Duffy and was scared of being cross examined by him in person.
The Court of Appeal allowed the appeal of the defendant Michael Duffy from the decision of the Employment Appeal Tribunal, dismissing the defendant’s appeal from the decision of the employment tribunal and remitted the case. The Court of Appeal reminded tribunals that they have a wide discretion when it comes to designing fair procedures for substantive hearings.
Lord Justice Mummery held that the employment tribunal had made a procedural error in not first holding a pre-trial review for directions, to consider the options available under the Employment Tribunal Rules for the conduct of a fair and just substantive hearing, in light of Ms George stating that she was too frightened to attend a hearing and be cross-examined by the Respondent, who was acting in person.
He further stated that the Employment Tribunal needed to explore with the parties a number of points:
- Was the Employment Tribunal satisfied by evidence that the claimant had grounds for and was fearful of attending the hearing to be cross examined by the appellant?
- If so, should the Employment Tribunal disperse with the hearing?
- Should the Employment Tribunal hold separate hearings at which they each gave their evidence to the Employment Tribunal in the absence of the other?
- Should the parties be invited to submit to the Employment Tribunal in advance questions for the Employment Tribunal to put to the other party at the separate hearing?
This case sets out useful guidance on how employment tribunals deal with vulnerable witnesses.