Witness statement passages in Employment Tribunal struck out due to parliamentary privilege

Passages of a statement in an employment tribunal case against the government have parliamentary privilege and cannot be included, a judge has ordered.

Former civil servant Josie Stewart, who was dismissed from the Foreign, Commonwealth and Development Office in 2022, has brought claims of detriment and dismissal on the ground that she made protected disclosures.

Following the fall of the Afghan government to the Taliban in August 2021, Stewart, who was working at the British Embassy in Kabul, volunteered to leave her post on a temporary basis to work in the Afghan Crisis centre.

She spoke to the BBC, on an anonymous basis, in December 2021 and was critical of the UK government’s management of the evacuation of Afghan citizens who had worked for or assisted the UK government. The following month she sent a journalist screenshots of two emails classified as 'official sensitive'.

Stewart told the tribunal she spoke to the press to corroborate evidence given to the Foreign Affairs Select Committee and because of statements given by politicians, outside parliament, which she knew to be untrue.

The Foreign, Commonwealth & Development Office denies all allegations against it and that Stewart made any protected disclosures.

The disputed paragraphs in Stewart’s witness statement were added to ‘explain and support’ her ‘reasonable belief that the disclosures were in the public interest and substantially true’ but the tribunal said it was of ‘limited relevance’.

Employment Judge F Spencer, sitting at London Central Employment Tribunal, found that five paragraphs attracted parliamentary privilege and should be deleted but four others were admissible.

The judge said: ‘It is true that tribunals do not routinely require irrelevant passages in witness statement to be struck out, but the real issue here is privilege not admissibility, and the less probative the evidence the less compelling is the case for its inclusion.’

Refusing to leave the question of admissibility to be determined at the final hearing, the judge said: ‘The issue is, as both sides have stressed, of constitutional importance and needs to be determined in advance. Not to do so risks breaching privilege as well muddying the waters.’