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Tribunal Procedure: Witness Orders

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Can a tribunal refuse a witness order without assessing the relevance of the proposed witness's evidence?

Obviously not, held the EAT in Remploy v Lowen-Bulger.

In this case, the Claimant alleged that the real reason for his dismissal was because of racial dislike of him by his line manager. Just over a week before the hearing, the Respondent applied for a witness order in respect of the line manager, who had since left its employment. The tribunal refused the application, expressing concern over the late timing of the application and questioning whether the line manager was an unwilling witness.

The EAT held that in considering an application for a witness order, the tribunal had to be satisfied that the evidence in question would be relevant, and that it was necessary to make the order. However, the tribunal's refusal had made no reference to the potential significance of the evidence. This was either an error in approach or a failure to provide adequate reasons. Even if it had considered the relevance, the refusal would have been perverse given that the line manager's evidence would likely have been highly relevant and could not have been outweighed by other factors.

Thanks to Paul Livingston of Outer Temple Chambers for preparing this case summary.