Three things the Johnny Depp case teaches us about Employment Tribunal litigation
4 November 2020
As you will almost certainly have seen in the news, Hollywood star Johnny Depp has lost his libel case against the Sun. The newspaper had referred to him as a ‘wife beater’ because of allegations made by his ex-wife Amber Heard. After hearing weeks of evidence over the summer, High Court judge Mr Justice Nicol has concluded that there had been no libel, because the Sun had successfully showed that the words used were ‘substantially true’.
Although libel law is quite different from employment law, and despite the fact that I’ve yet to deal with a case involving A-list actors, I felt the case illustrated a number of important points that often crop up in Employment Tribunal cases. (They probably also come up in other forms of litigation too!)
Choosing to fight to ‘clear your name’ in a public forum can be risky
In my experience it is fairly common for both employers and employees to say that they want to bring or contest an employment case because they want to clear their name. That was exactly what Johnny Depp said he wanted to do, and the case was a good illustration of the risks of taking that approach!
Obviously most employment matters are nowhere near as high profile as Johnny Depp’s claim, which has been covered in the media around the world. Also, the cost of litigation was no object for either him or the Sun. However, in ordinary Employment Tribunal matters all cases, hearings and judgments are still a matter of public record, and you never know when the press or public may take an interest. Plus the costs of litigation can snowball, particularly in complex and lengthy cases such as discrimination or whistleblowing.
The general view seems to be that the evidence which came out during Johnny Depp’s case did not show either him or Amber Heard in a particularly favourable light, and this can happen in employment cases too.
Both employers and employees should bear in mind that even where they succeed in litigation, sometimes the victory may not be worth the cost, time commitment, or damage to reputation. There are always other options to consider, such as forms of alternative dispute resolution.
You may have to disclose things that embarrass you
Johnny Depp’s case obviously involved his private life, so it is perhaps understandable that at the time in question, the people involved were not always conscious of the fact that their private messages, documents and even CCTV could all potentially be scrutinised at some point in the future.
An employment context is clearly very different, and the parties, especially employers, should be much more on their guard. However despite this, time and time again we have seen cases where employers or employees have said things in an email or message which come back to haunt them in subsequent litigation.
The test for disclosure in the Employment Tribunal is that the parties have an ongoing duty to disclose documents they wish to rely upon in the case, as well as documents which adversely affect their case, adversely affect another party’s case, or support another party’s case. There are only a few limited exceptions to the duty of disclosure (such as correspondence for the purposes of taking legal advice) so my rule of thumb for employers is always “don’t put anything in writing which you wouldn’t want a Tribunal to see.” That includes social media and any kind of messaging, as well as letters and emails.
Witness statements are absolutely crucial
One of the things that let Johnny Depp down when he was giving his evidence was that when questioned, he admitted he wasn’t familiar with all of the contents of his witness statement. He reportedly said:
“Had I read the entire statement after the lawyers had drafted it, I would have found that missing piece. I am sure that I read some of it. I do not know that I read it all. I am sorry, I trusted my attorneys.”
This kind of thing will never go down well with a court or Employment Tribunal. The witness statement is supposed to be the mainstay of a witness’s evidence, and needs to accurately reflect their version of what happened in their own words. It is not unusual for lawyers to produce draft witness statements for witnesses, and there is nothing wrong with that. However, it is still always the responsibility of each individual witness to go through the draft, ensure that there are no key points omitted, and amend it if necessary so that they are happy with everything in their statement. Any issues with the accuracy of the statement could seriously damage the witness’s credibility in the eyes of any court or Tribunal.
It is also best to make sure that before any hearing takes place, the witnesses are all as familiar as possible with the contents of their statement and the key documents in the bundle and that they are fully briefed on what giving evidence will be like. That way, the witness should feel as relaxed and prepared as possible, which is much more likely to help them give their evidence clearly and effectively.
If you are an employer dealing with an Employment Tribunal claim, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].