Jones v The Secretary of State for Business Innovation & Skills

An Employment Tribunal decision made without a hearing to grant a witness order is a decision which must ordinarily be communicated to both parties under Rule 60. Any asserted departure from transparent communication requires clear justification and careful reasons.

Fairness is assessed objectively by the appellate tribunal. It is not merely a case-management matter reviewable on Wednesbury grounds. Where an unrepresented party is unexpectedly confronted with material oral evidence, the tribunal must take proper steps to ensure that the party understands any realistic procedural option, including an adjournment to obtain relevant rebuttal evidence. A decision must be set aside where the resulting unfairness may have affected the outcome.

The claimant sought payments from the Secretary of State after Bright International Training Ltd entered insolvency. His claims depended on establishing that he had been an employee of the company. The Birmingham Employment Tribunal dismissed the claims, finding that the asserted employment relationship was not genuine.

Before the hearing, the respondent obtained a witness order for Ms Thwaites. The Tribunal did not notify the unrepresented claimant of either the application or order. Ms Thwaites then gave oral evidence which the Employment Judge preferred. The claimant had not arranged for Ms Coulson, whose signed statement supported his case, to attend as a rebuttal witness.

The appeal concerned whether the non-disclosure and the conduct of the hearing deprived the claimant of a fair trial.

1. Appeal allowed. The decision was set aside and the matter remitted for a rehearing before a differently constituted Employment Tribunal.
2. The grant of the witness order was a decision made without a hearing. Rule 60, read with Rule 1(3) of the Rules in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, required written communication of that decision to both parties. The Tribunal's failure to notify the claimant was a procedural irregularity: see [52]-[60]. The court rejected an implied general exception based on Rule 32. Any possible withholding of the fact of a witness order would require careful consideration and reasons, and no such justification arose here.
3. Receiving Ms Thwaites's oral evidence was not itself unfair. A compelled witness may properly give evidence without a signed exchanged statement, provided that the hearing remains fair: see [62]-[64].
4. However, the claimant's surprise at Ms Thwaites's attendance materially affected his preparation and his decision not to secure Ms Coulson's attendance. In those circumstances, procedural fairness required the Employment Judge adequately to address the claimant's ability to obtain that relevant rebuttal evidence, including the possibility of an adjournment. The Judge did not do so: see [65]-[73].
5. Whether a trial has been fair is an objective appellate question. It is not reducible to a discretionary case-management decision subject only to Wednesbury review. Particular care is required to prevent an unrepresented litigant suffering procedural prejudice, even where that litigant's case appears weak: see [69]-[70], [79]-[84].
6. Ms Coulson's evidence was relevant, potentially independent corroboration. The court could not conclude that her oral evidence would necessarily have made no difference to the credibility findings or result. A fresh tribunal was appropriate under [2004] IRLR 763, and it was to be constituted so that the new judge had not read the earlier decision.

• Employment Appeal Tribunal: Allowed the claimant's appeal and set aside the Birmingham Employment Tribunal's decision.
• Employment Tribunal, Birmingham: In a written decision dated 3 February 2016 and sent on 8 February 2016, dismissed the claimant's claims after finding that the alleged employment relationship was not genuine.