EAT Practice and Procedure – Case Management – The Claimant is pursuing claims of sex discrimination, harassment, victimisation and whistle blowing before the Employment Tribunal (‘ET’). She applied for a witness order in respect of a former colleague, who initially agreed to attend as the Claimant’s witness but subsequently declined, citing issues relating to her pregnancy and referring to a non-disclosure agreement (‘NDA’) with the First Respondent. The ET declined to make any decision on the application without first receiving representation from the Respondents. The Claimant appealed.
Held: dismissing the appeal
There was no requirement that other parties be notified of an application for a witness order under rule 32 of the ET Rules (see rule 92) but it was expressly allowed that an ET might depart from that general rule where it considered it was in the interests of justice to do so. In any event, if the ET decided to grant the application, it would be required to communicate its decision to all parties to the proceedings ( Jones v Secretary of State for Business and Skills UKEAT/0238/16). Here the ET considered it might be assisted by the Respondents when determining issues of relevance and necessity (Dada v Metal Box Company Ltd [1974] IRLR 251 NIRC) and thus decided that the Respondents should be notified of the application in advance. There was no general rule that this additional procedural step was required because the witness had agreed an NDA, but it could not be said that the ET’s decision amounted to an error of law or was perverse.
Citations:
[2019] UKEAT 0137 – 19 – 2005
Links:
Jurisdiction:
England and Wales
Employment
Updated: 15 July 2022; Ref: scu.639653