Failure to produce witness for cross-examination is not a breach of human rights

Power v Greater Manchester Police Authority EAT/0087/10

religion or belief discrimination | witness cross-examination | right to a fair trial | spiritualism

The Employment Appeal Tribunal (EAT) has held that it is not a breach of the European Convention on Human Rights if a respondent employer fails to produce relevant witnesses for cross-examination at a hearing. However, on the facts of this case, it was reasonably arguable that the claimant's belief in spirituality, protected by discrimination law, contributed to the decision to dismiss him. 

Implications for employers

  • Despite the EAT’s finding on art.6, at hearings employers should always produce witnesses to support their case wherever possible, or their defence may be seriously undermined. Employers should remember that tribunals attach little or no weight to statements from witnesses not available for cross-examination. 
  • Although cases of discrimination on the grounds of religion or belief are relatively uncommon (compared with, for example, unfair dismissal), a dismissal even partly connected with a protected characteristic – such as spirituality – may be held to be a discriminatory act. 

Mr Power is a spiritualist, describing his religion as “love” and his beliefs as “being those of spirituality, that the spirit or motivating energy that animates living things survives physical death”. He was dismissed by the Greater Manchester Police Authority for misconduct, and claimed that his dismissal was related to his belief in spirituality, and that it was therefore discriminatory. 

At a preliminary hearing, the tribunal held that a belief in spirituality is capable of being protected as a religious or philosophical belief under discrimination law. However, at the full merits hearing the tribunal held, on the facts, that Mr Power had been dismissed mainly for conduct unconnected to his beliefs. The tribunal found that, although concerns related to Mr Power’s beliefs also played a part in the decision to dismiss, they only impacted upon that decision because of the unacceptable way in which Mr Power was perceived as expressing those beliefs. 

Mr Power appealed to the EAT, arguing not only that the tribunal’s decision on the discrimination point was incorrect, but also that his human rights had been breached by the employer’s failure to call a particular witness at the tribunal hearing. Mr Powers argued that because he could not cross-examine that witness, who by the time of the hearing had left the employer, his right to a fair trial under art.6 of the European Convention on Human Rights had been infringed. 

At a preliminary hearing, the EAT held that there had been no breach of art.6 of the Convention. The correct approach in discrimination cases is, provided the claimant establishes a prima facie case, for the employer to provide a non-discriminatory explanation. That explanation will be less credible if relevant witnesses are not produced by the employer to support its case and therefore cannot be cross-examined. The EAT held that this approach is not a breach of the right to a fair trial, and that art.6.3(d) of the Convention, which provides an explicit right of cross-examination and upon which Mr Power relied, only applies in criminal proceedings. However, having examined the tribunal’s decision on the discrimination point, the EAT held that it was reasonably arguable that the tribunal had decided that the decision to dismiss invoked Mr Power’s beliefs, at least in part. The EAT stated that if Mr Power’s belief did in fact contribute to his dismissal then it would likely be unlawful discrimination, and that issue should therefore go to a full EAT hearing. 

Additional resources

Case transcript of Power v Greater Manchester Police Authority (Microsoft Word format, 43K) (on the EAT website)

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