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Should an employment tribunal always copy a witness order to the other side?

In the recent case of Jones v Secretary of State for Business Innovation and Skills, the EAT was asked to consider the interplay between the Employment Tribunal Rules on when it is justifiable that a tribunal should not send a copy of a witness order to the other party in a claim.

Background

A witness order can be issued by either an employment judge’s own volition or following the application of any party in a claim. If granted, the witness order may require the attendance of any person in Great Britain to give evidence and/or to produce documents at a hearing (rule 32). A party may apply for such a witness order without notice to any other party in a claim (rule 92). However, these two rules appear to contravene the well-established principle that where a tribunal makes a decision without a hearing, it must communicate it in writing to all the relevant parties in the claim (rule 60).

Facts of the case

The Secretary of State applied for a witness order without informing Mr Jones, as permitted under rule 92. The tribunal decided to grant the witness order without a hearing. This meant that Mr Jones was unaware of his right to ask for an adjournment to the proceedings to call for rebuttal evidence. Mr Jones felt this greatly altered the fairness of the tribunal decision which subsequently went against him. Mr Jones appealed the decision.

The EAT allowed Mr Jones’s appeal, concluding that the failure of the Tribunal to inform Mr Jones of the witness order was unlawful. The EAT remitted the case for a rehearing. In coming to this decision, the EAT noted that the tribunal had decided not to inform Mr Jones that the Secretary of State had been granted the witness order, relying on rule 32. The EAT confirmed that this approach was wrong, as the power of the Tribunal under rule 32 should be deemed the exception rather than the norm. This is because the standard position should always be for tribunals to inform all the parties in a claim when a witness order has been made, unless the tribunal considers that there are compelling reasons why it should not do so.

Comment

The case provides much needed clarification from the EAT on the interplay between rules 32 and 60. If an applicant now does not wish for any party/parties in the proceedings to be informed of a witness order, they should carefully set out the reasons why in their original application. An example of this would be where an employee needs to be protected from reprisal by a current employer.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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