The Court of Appeal has confirmed that actions taken by an employer during the preparation of witness statements are not covered by judicial proceedings immunity.

S was head teacher at Moorlands Primary School and, as such, was an employee of Reading Borough Council.  The relationship between the parties deteriorated and she brought claims of race discrimination, harassment and victimisation against both the school and the borough council in respect of her employment.

During preparation for the tribunal hearing, S sought to amend her claim form to add further complaints.  One complaint was that the council had placed undue pressure on a witness to produce a statement containing false and inaccurate evidence.  She argued that this amounted to conduct that was likely to destroy or seriously damage the relationship of trust and confidence that should exist between her and her employer.

Not surprisingly, the employer objected to the inclusion of this late addition to her claim.  They argued that witness evidence was covered by judicial proceedings immunity, therefore the employer could not be sued over the content of its evidence.

The matter came before the Court of Appeal who decided that the complaint was not about the evidence that the council intended to use at the hearing, but about the means by which the witness was persuaded to give evidence.  As the witness had not yet given her evidence, it could not be covered by judicial proceedings immunity. S was therefore allowed to include the complaint in her amended claim.

The court further noted:

“If an employer, to the knowledge of the employee, is prepared to use underhand and improper means to defeat a claim of discrimination brought against it by the employee that is destructive of the requisite trust and confidence whether or not the employee succeeds.” Court of Appeal