Practice and Procedure – Case Management – witness order – exercise of ET’s discretion – overriding objective
The Claimant was pursuing complaints of race discrimination before the ET, specifically contending the real reason for his dismissal by the Respondent was because of racial dislike of him on the part of his line manager, Mr Pandya. Just over a week before the commencement of the Full Merits Hearing, the Respondent applied for a witness order in respect of Mr Pandya, who had left its employment and had stopped responding to its communications. The ET refused the application, questioning whether the Respondent had shown that Mr Pandya was an unwilling witness and expressing concern regarding the late timing of the application and the problem this might cause for the witness. The Respondent appealed.
Held: allowing the appeal
In considering an application for a witness order, the ET had to be satisfied both that the evidence in question would be relevant and that it was necessary to make the order (Dada v Metal Box Company Ltd [1974] IRLR 251 NIRC). This involved an exercise of discretion by the ET, which it was required to carry out judicially. In the present case, there was no indication that the ET has considered the relevance of the proposed evidence. Even if it had (although not stated in the Reasons provided for refusing the application), there was no indication that it had assessed the significance of the evidence – whether it was of marginal relevance or (as the Respondent urged) was central to the issues to be determined. Undertaking that exercise, as it was common ground that Mr Pandya’s evidence would be of considerable relevance in this case, it would be perverse to find the matters cited by the ET outweighed the grant of a witness order in these circumstances; at the time of the ET’s decision, there was no basis for concluding that granting the application might lead to a postponement of the hearing (as the Claimant contended) and the ET’s concern for the difficulties that might (but might not) be faced by Mr Pandya was disproportionate to the interests of justice in seeking to ensure that he give evidence.
Judges:
Eady QC HHJ
Citations:
[2018] UKEAT 0027 – 18 – 1602
Links:
Jurisdiction:
England and Wales
Employment
Updated: 13 April 2022; Ref: scu.609159