Court of Appeal reduces sentence in contempt proceedings arising from Employment Tribunal claim

Background

In the case of Ajao v Commerzbank AG, the claimant brought discrimination and sexual harassment claims against his former employer and colleagues. The Tribunal dismissed those claims.

The employer then obtained permission from the High Court to pursue contempt proceedings, alleging that the claimant had deliberately made false statements and fabricated evidence during the Tribunal process. Following a six-day hearing, the High Court found 12 allegations proved to the criminal standard and imposed a sentence of 20 months’ imprisonment.

Court of Appeal decision

The Court of Appeal upheld almost all of the findings of contempt. It rejected arguments that the trial judge had failed to deal properly with the evidence or that the proceedings were an abuse of process. The court confirmed that the judge had been entitled to make firm credibility findings after hearing oral evidence and that there was a clear public interest in addressing deliberate falsehoods in litigation.

However, it allowed the appeal in relation to one minor allegation and set aside that finding. This did not affect the overall conclusion that the claimant had deliberately fabricated serious allegations, including sexual harassment claims, and falsified documents in support of his case.

On sentence, the Court of Appeal held that the High Court had erred by referring to sentencing guidance for assault offences. Contempt of this kind concerns interference with the administration of justice and must be assessed on that basis. Reassessing the position, the court substituted a sentence of eight months’ imprisonment (less time already served) and declined to suspend it.

Learning points for employers

The case confirms that deliberate fabrication of evidence in Tribunal proceedings can give rise to contempt proceedings, subject to High Court permission and a criminal standard of proof. For employers, the decision illustrates the limited but important route available where there is compelling evidence that litigation has been pursued dishonestly. Any consideration of contempt proceedings should be approached carefully and proportionately, given the seriousness of the step and the public interest considerations involved.

For support or advice, please contact Eleanor Searle in our Employment team.