Background:

The claimant brought a series of claims against the respondent including one of sexual harassment and sexual assault against another employee who was also a separate respondent. The claimant applied for an anonymity order which was given effect. The Tribunal, at first instance, held that the substantive claim was false and that there was a lack of truthfulness from the claimant. It was on the basis of this decision that the claimant here brought a committal application against the former employee.

Outcome:

The basis of the committal proceedings were that the employee was in contempt of court by knowingly lying in evidence and fabricating events. This was done under oath and it was put forward by the claimant that it amounted to an interference with the due administration of justice. The defendant argued that there was a disparity in resources and that the claimant was not sufficiently precise in their application.

The High Court allowed the application. They stated that the legal test was for the claimant to show that there was a strong prima facie case and that it was in the public interest to bring the committal proceedings. Additionally, such proceedings had to be proportionate in accordance with the overriding objective within the Civil Procedure Rules (also contained in the Rules of the Court of Judicature in Northern Ireland). In terms of the Court’s position, they had discretion to grant permission and that it had to be exercised with caution. This had to be done taking into account the strength of the evidence, the circumstances and the defendant’s state of mind.

In applying this test and the factors, the High Court stated that the particulars could not be criticised and they were clearly set out. Additionally, the Tribunal’s findings of the allegations and the evidence being manufactured did demonstrate a strong prima facie case. The High Court had to examine each of the particulars and held that it would not be proportionate to allow the action when it came to allegations of emails and recordings being manufactured as it would require forensic evidence. However, the fabricated evidence in relation to a work diary and the allegations of sexual harassment and sexual assault made at the Tribunal could continue. It was held that such allegations, which concerned the defendant making very serious false complaints, should be subject to judicial determination.

Practical Guidance for Employers:

A strange situation of the ‘empire striking back’ where the employer has gone on the offensive following success in the Tribunal with a finding that the employee had made false claims and fabricated evidence. This is the only a stage in which the case can proceed to determine if there has been contempt of court which will mean that the evidence will have be assessed at a higher standard.  Whilst unusual, this case does demonstrate that there can be some additional armoury at the disposal of an employer who is met with such a case.

Jason previously covered this case at EAT level. The Review can be found here:
https://www.legal-island.com/articles/uk/case-law/2024/feb/z-v-commerzbank-ag--ors-2024/