UK: BBC Journalist Loses Appeal Against Her Tribunal Claim Being Struck Out

Facts of the Case

  • BBC journalist Sally Chidzoy claimed to be a victim of discrimination, victimisation and sexual harassment by BBC management.
  • Ms Chidzoy's case against the BBC was listed for an 11-day hearing in February 2017 before the Cambridge employment tribunal.
  • After being sworn to the truth of her witness statement, Ms Chidzoy was due to be cross-examined by legal counsel for the BBC for three days.
  • On the third day, after a short comfort break, counsel for the BBC informed the tribunal that she had witnessed Ms Chidzoy in discussion with a third party. BBC counsel informed the tribunal that her instructing solicitor and one of the BBC's witnesses had also witnessed the conversation. The third party was subsequently identified as a journalist.
  • The hearing was adjourned so that Ms Chidzoy could speak to her solicitor, Mr Jackson. Mr Jackson went on to tell the tribunal that he had offered to speak to the journalist and that they went together to a room to talk, however as Ms Chidzoy was sitting in the room they did not enter. Mr Jackson said he later went into the room to get copies of witness statements to share with the journalist and that subsequently he, Ms Chidzoy and the journalist were all together in the waiting area. Mr Jackson then said that Ms Chidzoy and the journalist were left alone when he went to the lavatory. He advised that he had not heard anything "untoward" and Ms Chidzoy confirmed with him that she had not discussed evidence with the journalist.
  • The tribunal decided that it needed to hear a full version of events from both sides through written statements and adjourned the hearing. The BBC applied to strike out Ms Chidzoy's claims on the grounds that;

    • the manner in which the proceedings had been conducted by or on behalf of Ms Chidzoy had been scandalous, unreasonable or vexatious; and
    • it was no longer possible to have a fair hearing.
  • At the resumed hearing, the BBC submitted that Ms Chidzoy had been given clear warnings by the tribunal not to discuss her evidence or the case until her evidence was completed, they claimed that;

    • The BBC's solicitor had seen the discussion and heard the word "Rottweiler".
    • The BBC's counsel was told by a witness that they had heard reference to "dangerous dogs".

    • When the BBC's counsel approached Ms Chidzoy and the journalist to intervene in the conversation, she had also heard the word "Rottweiler", however she could not be sure who said it.
  • The reference to these words was significant in its context because just before the adjournment, Ms Chidzoy had been cross examined about an email circulated within the BBC (but not to her) concerning possible coverage of a story regarding the UK's Dangerous Dogs Act. It had suggested that Ms Chidzoy could be the reporter but referred to her as "Sally Shitsu". Ms Chidzoy argued that this demeaned her on the grounds of gender, by calling her a dog and abused her generally by implying that she wasn't very good at her job.
  • The BBC's position was that during her grievance hearing Ms Chidzoy had said that she wouldn't have objected if she had been called "Sally Terrier" or "Sally Rottweiler". Ms Chidzoy disagreed and said that any reference to "Rottweiler" and "Terrier" during the grievance hearing related to the occasional use of these words in a complimentary way about journalists who do not give up on a story.
  • Ms Chidzoy claimed that the journalist approached her as she was leaving for the adjournment and they exchanged pleasantries whilst waiting for her solicitor. Ms Chidzoy claimed that it was the journalist who proffered the information that she had once been called a "Rottweiler or Terrier" in relation to her work and it was at this point the BBC's counsel intervened. The journalist claimed that it was in fact Ms Chidzoy who had approached her and it was also Ms Chidzoy who volunteered that she had been called a "Rottweiler".

The Employment Tribunal

The tribunal unanimously found that Ms Chidzoy had discussed the case and her evidence with the journalist and this constituted unreasonable conduct and showed disregard for the tribunal's instructions. The tribunal's trust in Ms Chidzoy was "irreparably damaged". The tribunal based this finding on Ms Chidzoy's discussion with the journalist. This determination was reinforced by the way that the conversation was allowed to take place. The tribunal noted that Ms Chidzoy's solicitor should have known better than to allow his client to speak to the journalist alone and he should have brought the matter to the tribunal's attention, rather than leaving it to the BBC. The tribunal concluded that a fair trial was no longer possible.

The Employment Appeal Tribunal

In April 2018, the EAT upheld the employment tribunal's decision to strike out Ms Chidzoy's claims of whistleblowing and sex discrimination. The EAT held that the tribunal had been entitled to find that Ms Chidzoy's conduct was unreasonable and that the breakdown in trust meant that it was no longer possible to conduct a fair trial. In addition, the EAT held that the tribunal's decision to strike out the claim was proportionate, as the tribunal had determined that there were no other alternative courses of action.

Key points to note from this case

This case is a reminder that if employers ever find themselves at the employment tribunal, the need to keep witnesses and parties relative to the case separate during an adjournment whilst under oath is crucial. The threat of evidence and information being passed between them and a third party is not worth the risk of corrupting evidence, which is why clear warnings are given. In cases that attract media interest, it is useful to notify witnesses and parties about how to respond if they are approached to speak about the case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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