Paul, Weiss, Rifkind, Wharton & Garrisson LLP & Ors v Christie

An Employment Tribunal may ordinarily receive an application for a witness order without notice to the other parties. It may nevertheless require notice or representations before deciding the application where that procedural step is in the interests of justice and accords with the overriding objective.

An NDA does not determine whether a witness order should be made. Its particular confidentiality provisions may, however, be relevant to the Tribunal’s discretionary assessment alongside relevance, necessity and the broader interests of justice. An appellate court will not interfere with a permissible case-management step merely because the Tribunal has deferred its final decision on the application.

The Claimant brought Employment Tribunal claims including sex discrimination, harassment, victimisation and whistleblowing detriment arising from her employment and dismissal. She sought a witness order requiring a former colleague, Ms Larsen, to give evidence and produce documents. The colleague had initially agreed to assist but later declined, referring to pregnancy-related difficulties and an agreement with the First Respondent.

The London Central Employment Tribunal did not finally refuse the application. It decided that it was not minded to make an order without first receiving the Respondents’ input, referring to possible non-disclosure obligations, the proposed witness’s vulnerability and potential satellite litigation. The Claimant appealed, contending that the Tribunal had applied irrelevant considerations and failed to address relevance, necessity and the overriding objective.

1. Appeal dismissed. The Employment Tribunal had not finally determined the witness-order application. It had inserted a further procedural step by requiring the Respondents’ input before deciding it.

2. Rule 92 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 ordinarily permits a Rule 32 application to be made without notifying other parties. That protects against pressure being placed on a prospective witness. But Rule 92 permits departure from that position where the interests of justice require it. The Tribunal must decide that question consistently with the overriding objective.

3. If a witness order is made, it will ordinarily have to be communicated to all parties under Rule 60, as explained in Jones v The Secretary of State for Business, Innovation and Skills UKEAT/0238/16. It was therefore open to the Tribunal, in an appropriate case, to obtain representations before making its decision rather than only after notifying a completed order.

4. There is no automatic right to a witness order. The Tribunal must address whether the proposed evidence is relevant and whether an order is necessary, consistently with Dada v Metal Box Company Ltd [1974] IRLR 251 NIRC. The existence of an NDA is not determinative and does not remove the Tribunal’s jurisdiction. The agreement’s actual confidentiality provisions may nevertheless be relevant to the discretionary balance and the interests of justice.

5. On the material before it, the Tribunal was entitled to seek clarification about the witness’s concerns, including her vulnerability and possible confidentiality obligations. It had made no final finding on relevance, necessity or the ultimate balance. Its procedural direction was within its case-management discretion, was not perverse and disclosed no error of law.

• Employment Appeal Tribunal: appeal dismissed: [2019] UKEAT 0137_19_2005.
• London Central Employment Tribunal: deferred determination of the Claimant’s witness-order application pending input from the Respondents.