Can a tribunal seek representations from a Respondent employer before deciding to grant an applicant's request for a witness order?
Yes, held the EAT in Christie v Paul, Weiss, Rifkind, Wharton & Garrisson LLP.
The Claimant, in pursuing claims of sex discrimination, harassment, victimisation and whistleblowing against the Respondent, applied for a witness order in respect of a former colleague, who initially agreed to attend as her witness, but subsequently declined, citing issues relating to her pregnancy and referring to a non-disclosure agreement with the employer. A tribunal declined to make any decision on the application without first receiving representations from the Respondent. The Claimant appealed.
The EAT refused to disturb the tribunal's decision. It was true that the rules of procedure did not require that other parties be copied into an application for a witness order. But, on the other hand, it was expressly allowed that a tribunal might depart from that general rule where it considered it was in the interests of justice to do so.
In deciding whether to grant an application for a witness order a tribunal is exercising a judicial discretion. Here the tribunal considered it might be assisted by the employer when determining issues of relevance and necessity, and thus decided that it should be notified of the application in advance.
There was no general rule that this additional procedural step was required just because the witness had agreed an NDA, but it could not be said that the tribunal's decision amounted to an error of law or was perverse. The tribunal did nothing more than insert a permissible procedural step into its consideration of this application. That step was not outwith the tribunal rules of procedure and was in accordance with the overriding objective and consistent with a more general concern to do justice in the present case.
Thanks to Dr John McMullen of Stone King LLP for preparing this case summary.