Was a Tribunal entitled to seek an employer’s view before determining a witness order application?

A party applying for a witness order is not required to copy this to all other parties under Rule 92 of the ET rules, however the Tribunal may depart from this rule where it considers that it is in the interest of justice to do so.

The Claimant brought claims of sex discrimination, harassment, victimisation and whistleblowing against the Respondent.

Before the final hearing, the Claimant applied for a witness order in respect of her former colleague, Ms Larson. Ms Larson had previously agreed to attend as a witness but later declined, citing issues relating to her pregnancy and referring to a non-disclosure agreement that she had signed with the Respondent following the settlement of her own Employment Tribunal claim. The Claimant believed that Ms Larsen could give evidence on the Respondent’s alleged hostile working environment for women and produce documents in relation to her own claim.

Employment Tribunal

The Employment Tribunal (ET) declined to make a decision on the application without hearing representations from the Respondent. The ET considered that it was not clear what non-disclosure obligations Ms Larsen was under and felt that she was in a vulnerable position, at a time close to the birth of her child.

The ET found that it was not consistent with the overriding objective to make a decision in the absence of further information from the Respondent and asked the Claimant to reformulate her application in a manner appropriate for disclosure to the Respondent.

The Claimant appealed on a number of grounds, citing that it was an error of law, the ET had taken into account irrelevant factors and failed to perform a balancing exercise of competing interests.

Employment Appeal Tribunal

The Employment Appeal Tribunal (EAT) dismissed the appeal and held that whilst there was no requirement that other parties be notified of an application for a witness order, it was commonly held that an ET may depart from that general rule where it considered it was in the interests of justice to do so. When assessing whether it is in the interests of justice, an Employment Tribunal should consider whether derogating from the general rule around witness order applications would permit it to deal with the particular matter fairly and justly.

The EAT referred in its decision to the fact that the Respondent would be permitted to make representations in relation to a witness order after it was made. The ET justifiably considered that it would be of assistance to the decision making process if the Respondent was permitted to make such representations at an earlier stage.

In this instance, the Tribunal considered that it might be assisted by the Respondent when determining issues of relevance and necessity and, as a result, made the decision to notify the Respondent. The EAT held that there was no general rule that this additional procedural step was required just because the witness had agreed an NDA.

The EAT also noted that the Tribunal had not made a determination on the Claimant’s application, instead adding a further procedural step prior to doing so. Therefore, there was no requirement to perform the balancing exercise.

Comment

The EAT noted that the rule not requiring notification to other parties for a witness order application was made for good reasons, giving the example of pressure being placed on a witness to discourage them from attending a hearing, particularly where the witness remains employed by the Respondent. Therefore this case is an interesting departure from the ET rules, given the witness in this case remained employed by the Respondent.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.