Mr A Anjum v Epsom and St Helier University Hospitals NHS Trust — 2021

Mr A Anjum brought complaints of age discrimination, unfair dismissal and damages for breach of contract against Epsom & St Helier University Hospitals NHS Trust. The respondent denied the complaints. The hearing began on 18 October 2021, and while the claimant was still giving evidence the tribunal warned him that he must not discuss his evidence or the case with anyone, including his legal team.

At the start of the second day, the claimant's counsel told the tribunal that his instructing solicitor had spoken with the claimant that morning and had sent counsel an email/file note of the conversation. The claimant initially did not waive privilege over the note. The respondent applied under rule 37(1)(b) and (e) for the claim to be struck out on the basis of unreasonable conduct and/or because a fair trial was no longer possible.

The tribunal applied the four-stage test in Bolch as affirmed in Chidzoy. It found that the proceedings had been conducted unreasonably by the claimant and on his behalf by his solicitor: the claimant had been clearly warned not to discuss the case or his evidence, and the solicitor knew he was mid-evidence before contacting him. Before seeing the file note, the tribunal concluded on the balance of probabilities that the conversation was of a nature that would materially affect the claimant's future evidence, but gave him a further opportunity to disclose it.

After the file note was disclosed, the tribunal found that it did not assist the claimant's position. It recorded that the note showed discussion of how the hearing had gone, counsel's view of the case, the claimant's view of his evidence, and specific matters relating to SACU and alleged lack of discussion with him. The tribunal held that it could not be confident the note reflected the whole conversation, that the evidence had been tainted, and that no lesser remedy would be appropriate. The whole claim was struck out, with no determination of the merits and no remedy award.