Vulnerable Witnesses

Witnesses

Vulnerability

Case Duffy v George [2013] EWCA Civ 908

Facts D was accused of sexual harassment by Ms G, a colleague. She brought a claim against D personally. Ms G requested an order that she would not be required to attend the hearing because she was frightened of D. D objected on the basis that he wished to question her. The ET refused her request. The hearing proceeded in the absence of Ms G. Two complaints of sexual harassment were upheld. On appeal to the EAT, D’s appeal was rejected on the basis that tribunals were able to proceed and to admit evidence even though the claimant was not available for cross-examination. The test was one of fairness. D appealed to the Court of Appeal.

Decision 1. The ET should have held a pre-trial review to consider the options available in the light of Ms G’s decision not to attend the hearing. These included holding separate hearings, allowing each side to submit questions in advance or allowing witnesses to give evidence from behind a screen.

2. The case would be remitted for hearing by a different tribunal.