[Thanks to Jahad Rahman of Rahman Lowe Solicitors for preparing this case summary]
Can a tribunal refuse to allow the late calling of further witnesses in the absence of a proper explanation?
Yes, says the EAT in North Bristol NHS Trust v Harrold.
The Claimant alleged that the Respondent subjected her to direct discrimination on the grounds of her race and victimised her by giving false evidence to the Nursing and Midwifery Council such that they caused her to be struck off.
On the third and final day of the liability hearing, the employment tribunal refused the Respondent's application to adjourn to call as witnesses the people who made the decision to report the Claimant to the NMC.
The EAT upheld the tribunal's decision and held that when deciding whether to grant an application to adjourn to call further witnesses, an employment tribunal must balance the interests of both parties and "not accede automatically to the wishes of the Respondent". In particular, a hearing will not have been unfair if it caused no substantial prejudice to the party claiming to be aggrieved.
On the facts, the EAT found that the Respondent should have appreciated that the critical issue was why the Claimant was referred to the NMC. This would have required the presence of those responsible for referring the Claimant to the NMC. There was no proper explanation as to why the Respondent had not arranged to call the witnesses earlier and in light of this, the EAT concluded that there was no injustice to the Respondent.