Singh v Reading Borough Council and another

JurisdictionUK Non-devolved
CourtEmployment Appeal Tribunal
Employment Appeal Tribunal Singh v Reading Borough Council and another UKEAT/540/12 2012 Nov 15; 2013 Feb 12 Cox J, Mr A Harris, Mr S Yeboah

Practice - Pleadings - Striking out - Claim of unfair constructive dismissal - Claimant relying on allegation of undue pressure by respondents in producing witness statement in earlier discrimination proceedings - Whether judicial immunity applicable - Whether that part of claim to be struck out

The claimant, the head teacher at a primary school maintained by the respondent council, complained to an employment tribunal that she had been the victim of a campaign of racial discrimination and harassment by parents, staff and school governors, with a view to removing her from her post. Witness statements exchanged in preparation for the hearing included one from the school business manager which the claimant alleged contained false allegations against her and had been made as a result of improper pressure by the respondents. The claimant resigned and was granted leave to amend her claim to add a complaint of constructive unfair dismissal, relying on the alleged undue pressure put on the business manager to produce false evidence as the final straw in a course of conduct by the respondents that amounted to a repudiatory breach of her contract of employment. At a pre-hearing review, the employment tribunal decided that the contents of the witness statement and the conduct connected with its preparation attracted absolute judicial proceedings immunity, so that the claimant could not rely on her allegation of undue pressure to support her complaint of constructive dismissal, and the relevant parts of her amended claim were struck out.

On an appeal by the claimant—

Held, dismissing the appeal, that judicial proceedings immunity, whereby no action could be brought against parties or witnesses for anything said or done in the ordinary course of court proceedings, necessarily included things said or done in the course of preparing evidence for hearing in a court or tribunal, regardless of the form of action being brought; that the claimant’s allegation that the respondents exerted undue influence on a witness to provide a false statement for their use at the discrimination hearing clearly related to the participation of the respondents in the judicial process and fell within the immunity; that, while the immunity would not extend to acts done to procure false primary evidence where the acts were not part of the perpetrators’ participation in the justice process, the claimant’s constructive dismissal claim depended on the alleged discussions between the respondents and their witness about her evidence for trial and related directly to their function as parties to the litigation preparing evidence for trial; and that such an allegation was within the current scope of the immunity, whether or not actuated by malice or amounting to impropriety (post, paras 71, 72, 78, 83, 85, 96, 99, 123125, 140).

Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435, HL(E) distinguished.

The following cases are referred to in the judgment:

Autofocus Ltd v Accident Exchange Ltd [2010] EWCA Civ 788, CA

Baxendale-Walker v Law Society [2011] EWHC 998 (QB)

Buckley v Fitzsimmons (1993) 113 S Ct 2606

Cabassi v Vila (1940) 64 CLR 130

Cutler v Dixon (1585) 4 Co Rep 14b

Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435; [2000] 3 WLR 747; [2000] 4 All ER 193, HL(E)

Dawkins v Lord Rokeby (1873) LR 8 QB 255

Heath v Comr of Police of the Metropolis [2004] EWCA Civ 943; [2005] ICR 329, CA

Hall (Arthur JS) & Co v Simons [2002] 1 AC 615; [2000] 3 WLR 543; [2000] 3 All ER 673, HL(E)

Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398; [2011] 2 WLR 823; [2011] 2 All ER 671, SC(E)

Kennedy v Hilliard (1859) 10 CLR 195

L (A Child) v Reading Borough Council [2001] EWCA Civ 346; [2001] 1 WLR 1575, CA

Mann v O’Neill (1997) 71 ALJR 903

Marrinan v Vibart [1963] 1 QB 528; [1962] 3 WLR 912; [1962] 3 All ER 380, CA

Munster v Lamb (1883) 11 QBD 588, CA

Parmar v East Leicester Medical Practice [2011] IRLR 641, EAT

Rondel v Worsley [1969] 1 AC 191; [1967] 3 WLR 1666; [1967] 3 All ER 993, HL(E)

Roy v Prior [1971] AC 470; [1970] 3 WLR 202; [1970] 2 All ER 729, HL(E)

South London & Maudsley NHS Trust v Dathi [2008] IRLR 350, EAT

Taylor v Director of the Serious Fraud Office [1999] 2 AC 177; [1998] 3 WLR 1040; [1998] 4 All ER 801, HL(E)

Watson v M’Ewan; Watson v Jones [1905] AC 480, HL(Sc)

The following additional cases were cited in argument:

Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184; [1981] 1 All ER 715

Spurlock v Satterfield (1999) 167 F 3d 995

INTERLOCUTORY APPEAL from an employment tribunal sitting at Reading

By a judgment on a pre-hearing review given on 11 October 2012 and subsequent reasons the tribunal decided that the contents of a witness statement and conduct connected with its preparation attracted absolute judicial immunity, and that the claimant, Mrs Sudhana Singh, could not rely on it in her claim of constructive unfair dismissal against the respondents, the Governing Body of Moorlands Primary School and Reading Borough Council, with the result that that part of the claim would be struck out.

On 26 October 2012 the claimant appealed on the grounds that the tribunal was wrong in failing to appreciate that (1) while immunity attached to things said or done by a witness both when giving evidence and preparing to do so, it did not extend to acts undertaken to create or procure false evidence; and (2) the immunity represented a derogation of the claimant’s normal right of access to a court and should only be applied where it was strictly necessary and should not be extended unless there was a compelling reason to do so.

The facts are stated in the judgment.

Heather Williams QC and Althea Brown (instructed by Bindmans LLP) for the claimant.

Robin Allen QC and Akua Reindorf (instructed by Reading Borough Council Legal and Democratic Services) for the respondents.

The court took time for consideration.

12 February 2013. The following judgment of the appeal tribunal was handed down.



1 This appeal concerns the scope and application of judicial proceedings immunity.

2 The issue has arisen in the course of proceedings before an employment tribunal at Reading, currently adjourned part heard. The claimant, formerly the head teacher at Moorlands Primary School, alleges that she was the victim of a concerted campaign of racial discrimination, harassment and victimisation, pursued by parents, staff and governors at the school, and encouraged by senior employees of Reading Borough Council, in order to remove her from her post.

3 Before the tribunal hearing began, and while the claimant was still employed as head teacher, the respondents served a witness statement from the school business manager and clerk to the governing body, Sue Heath, who is to be called as a witness on their behalf. The claimant believes that the statement contains lies, and that this is the result of improper pressure being put upon Ms Heath to make a statement unhelpful to the claimant.

4 Following service of this witness statement the claimant resigned from her employment, claiming that this was the “final straw” in terms of her treatment by the respondents. Her extant tribunal claim was subsequently amended to include claims of constructive dismissal.

5 In their reasoned judgment, received by the parties on 19 October 2012 after a pre-hearing review, the employment tribunal held that the contents of this witness statement and the conduct connected with its preparation attracted absolute judicial proceedings immunity; that Ms Heath could not be required to give any evidence relating to the allegation of improper pressure; and that the claimant could not rely upon this allegation in support of her complaint of constructive dismissal. The tribunal struck out various paragraphs of her amended claim which, in accordance with their ruling, they considered they had no jurisdiction to determine.

6 In contending that this decision is wrong Ms Heather Williams QC, appearing for the claimant, submits that the immunity principle does not apply in the particular circumstances of this case, given the nature of the wrongdoing alleged and the fact that the amended claim reflects a continuing course of conduct by the respondents, which has ultimately destroyed the employment relationship. On behalf of the respondents, Mr Robin Allen QC submits that the immunity is absolute; that the claimant cannot get around it; and that the judgment of the tribunal is plainly correct.

7 There was extensive citation of authority by both counsel in this appeal, in support of their submissions on the rationale for the immunity and its reach. Helpfully, their detailed written submissions and succinct oral submissions enabled us to conclude the hearing in the one day allocated, and reserve judgment to consider the competing arguments.

The relevant background

8 The claimant, who describes herself as a non-white British citizen of Indian origin, was appointed head teacher of Moorlands Primary School, a community school maintained by Reading Borough Council, with effect from 1 September 2009. This was her first appointment as head teacher. She was employed by the council, but the governing body of the school had statutory responsibility for the claimant’s appointment and for the management of her performance and the implementation of policies regulating the employment relationship, including grievance, capability and disciplinary procedures.

9 One of the members of the senior leadership team at the school is Sue Heath, the school business manager and clerk to the governing body. In that capacity Ms Heath worked closely with the claimant, and it is common ground that they enjoyed a good working relationship.

10 During the claimant’s first year as head teacher serious difficulties arose in her relationships with parents, members of staff and governors, including the chair of...

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