Arnold Clark Automobiles Ltd v Middleton

An Employment Tribunal has power in principle to require a witness to attend of its own initiative. That power must be exercised consistently with the overriding objective, fair notice and the adversarial character of proceedings.

Where both parties give reasoned opposition to additional witnesses, the Tribunal must identify a fair and just basis for the order. It should consider the proposed evidence, its relevance to the issues, prejudice, delay and cost. The Tribunal must not investigate or develop either party’s case. An unexplained insistence on further evidence in those circumstances may be perverse.

The claimant brought a complaint of constructive unfair dismissal, alleging that the employer’s response to health and safety concerns amounted to a fundamental breach of the implied term of trust and confidence.

After the parties had closed their evidence and wished to make submissions, the Employment Tribunal decided to call two further former employees to give evidence about working conditions. Both parties opposed the orders and sought their revocation. The Tribunal refused and listed further hearing dates.

The employer appealed against the making and retention of the witness orders. The central issue was whether the Tribunal had permissibly exercised its power to call witnesses of its own initiative.

1. Appeal allowed. The Employment Tribunal’s decision to issue witness orders and then refuse to revoke them was perverse. The orders were revoked.

2. Rules 10(1), 2C and 27(7) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 permitted a Tribunal in principle to require witnesses to attend on its own initiative. The existence of that power did not make its exercise appropriate in this case.

3. An Employment Tribunal is not an investigative body. It may question witnesses to clarify evidence elicited by the parties, but it must not run either party’s case or explore a case of its own making. Calling witnesses despite reasoned opposition from both parties creates those risks and can also place parties, particularly unrepresented parties, in an invidious position.

4. Before making a witness order, the Tribunal must consider whether it is justified by the complaint and by fair notice. Relevant matters include what evidence the witness can give, its relationship to the issues, fairness in the face of opposition, and any cost, delay or other prejudice.

5. Here neither party wished to call further evidence, the witnesses had not previously been identified as relevant, and the claimant considered that he could establish his case without them. The Tribunal gave no adequate reason beyond the Employment Judge’s wish to hear more evidence. Its course also created an appearance that it was seeking evidence for one side or the other.

6. The case was remitted to the Employment Tribunal to hear submissions without further evidence and determine the claim.

• Employment Appeal Tribunal: allowed the employer’s appeal, revoked the witness orders and remitted the claim for submissions and determination without further evidence.
• Employment Tribunal, Aberdeen: after the parties closed their evidence, ordered two additional witnesses to attend and refused the parties’ joint request to revoke those orders.