It is well established in law that witnesses enjoy immunity from actions based on evidence given in court or in a statement. In Singh v Reading Borough Council and anor, the Court of Appeal held that the immunity rule does not apply when the complaint is about the means by which a witness statement was procured, as opposed to what it was alleged to have said.
Basic facts
Ms Singh, a British citizen of Indian origin, was appointed head teacher at Moorlands Primary School in September 2009. After receiving a petition signed by about 170 parents in June 2010 expressing a lack of confidence in her, the Council initiated an independent review which identified a number of serious problems relating to Ms Singh's management style and interpersonal skills.
In September she lodged tribunal complaints alleging race discrimination, harassment and victimisation, broadly reflecting the complaints she had made in a grievance lodged in July, none of which were upheld.
In November 2011, Ms Singh rang the school business manager, Sue Heath, with whom she had always had a good relationship to ask her to appear as a witness for her. However, she replied by text saying that she had been told not to have any contact with Ms Singh. In January 2012, Ms Singh received the witness statements prepared for the Council, including one from Sue Heath. Arguing that this was the “last straw”, Ms Singh handed in her notice in February 2012.
She also applied to amend her ET1 to add claims of constructive dismissal and psychiatric injury, resulting from the Council’s conduct in “placing undue pressure on Mrs Sue Heath to produce a witness statement containing false or otherwise inaccurate evidence for the purpose of these proceedings”. This, she said, amounted to conduct likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.
Tribunal and EAT decisions
Both the tribunal and the EAT held that the “final straw” allegation could not succeed, because the immunity rule covering judicial proceedings included all the Council's activities (whether proper or improper) when gathering evidence to defend itself against Ms Singh's discrimination claim.
Decision of Court of Appeal
The starting point, said the Court of Appeal, was that any wrong should not be without a remedy. However, there was a potential clash between it and the core immunity rule which protected witnesses when giving evidence so that they didn’t have to worry about being sued for what they said in court.
But there were also limits to the rule and the question here was where the line should be drawn. Ms Singh alleged that the Council had applied undue pressure on Ms Heath to get her to act as their witness. She was not therefore complaining about what the statement said, but the means by which it had been procured.
The nub of her complaint was that the Council had done something calculated to destroy or damage the trust and confidence inherent in an employment relationship. Indeed, her complaint that the Council was in breach of contract would be just as valid if Ms Heath had told Ms Singh about the alleged pressure but had resisted it.
Accordingly the Court decided there was no immunity behind which the Council could shelter and agreed that Ms Singh could rely on the last straw allegation in relation to her constructive dismissal claim.