Remploy Ltd v Lowen-Bulger

An Employment Tribunal considering a witness order must first assess whether the proposed evidence is relevant to the issues and its likely significance. It must then decide whether an order is necessary, exercising its discretion judicially and consistently with the overriding objective.

Where evidence is likely to be central, peripheral matters such as late application, lack of advance warning to the witness, or uncertainty whether the witness will attend voluntarily cannot outweigh the interests of justice without a proper and proportionate assessment. Reasons must enable the parties to understand how the Tribunal dealt with relevance, significance and necessity.

The claimant brought complaints of race discrimination arising from his dismissal. He alleged that his line manager, Mr Pandya, acted from racial dislike. The respondent maintained that dismissal was for unsatisfactory performance.

Shortly before the listed merits hearing, the respondent sought a witness order requiring Mr Pandya, a former employee who had ceased responding to communications, to attend on two hearing days. It said that his evidence was pivotal to allegations concerning conduct in which he was directly involved. The Leicester Employment Tribunal refused the application because it was late, Mr Pandya had not been warned, and his unwillingness had not been established.

The respondent appealed, challenging the Tribunal’s approach to relevance and necessity, and the adequacy of its reasons.

1. Appeal allowed. The Employment Appeal Tribunal held that the Employment Tribunal’s decision was unsafe and could not stand.

2. Under Rule 32 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a witness order is discretionary. Applying Dada v Metal Box Company Ltd [1974] IRLR 251, the Tribunal had first to be satisfied that the witness could give relevant evidence and that an order was necessary. The discretion had to be exercised judicially and in accordance with the overriding objective in Rule 2.

3. The Tribunal’s reasons did not address the relevance of Mr Pandya’s evidence or its likely significance. Relevance was not merely a threshold issue: the Tribunal had to assess how important the evidence was when balancing the necessity of an order against countervailing considerations. The evidence was, on common ground, likely to be of considerable significance. The failure to demonstrate that this assessment had been made was either an error of approach or an inadequate explanation.

4. Even assuming that the Tribunal had accepted the evidence’s significance, its refusal was perverse. The late application, absence of prior warning, and uncertainty about whether the witness was unwilling were at most peripheral matters on necessity. At the time, neither party sought a postponement. The Tribunal’s speculative concern about possible inconvenience to the witness was disproportionate to the interests of justice in securing evidence central to the dispute.

5. Although reasons for a procedural decision may be short under Rule 62, they must tell the parties why they have won or lost. The appeal was therefore allowed.

• Employment Appeal Tribunal: allowed the respondent’s appeal in [2018] UKEAT 0027_18_1602.
• Leicester Employment Tribunal: refused the respondent’s application for a witness order in a decision communicated on 30 January 2018.