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Tribunal Procedure: Witness Orders

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Should an employment tribunal copy a witness order to the other side (tribunal practice is not to do so)?

Yes, held the EAT (in almost all circumstances) in Jones v Secretary of State for Business, Innovation and Skills.

The Claimant was not legally represented. The Respondent applied for a witness order (without informing the Claimant, as permitted by rule 92). The tribunal made a 'decision' to grant the witness order, without informing the Claimant of it. The Claimant was unaware of his right to ask for an adjournment to call rebuttal evidence. This was a material irregularity making the judgment unsafe so the case was remitted. Rule 60 requires a tribunal to notify the parties of a decision made without a hearing (e.g. to grant a witness order).  However, the tribunal had not told the other side that it had granted a Witness Order, because rule 32 allows one party to apply for a Witness Order without telling the other side, and the tribunal thought this meant the other side didn't end to be told of the decision either.

The EAT noted that there was no express power in rule 60 for a party not to be informed of a Witness Order, but it left open the possibility that there might be one, e.g. where an employee needs to be protected from reprisal by a current employer.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.

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