N Orban v Rohan Designs Ltd

An employment judge may direct a party seeking to call a witness by video from abroad to follow the applicable Presidential Guidance. Where the direction does not finally refuse a hybrid hearing, but makes it conditional on completing the administrative process and obtaining any necessary foreign-state consent, it is an ordinary case-management decision within the judge’s discretion.

A refusal of specific disclosure on relevance grounds must give adequate reasons. Documents concerning comparable flexible-working arrangements may be prima facie relevant where they could bear on the genuineness of the employer’s stated reason for refusing the claimant’s request. If documents have subsequently been voluntarily supplied and no further documents are identified, a further disclosure order need not be made for a fair hearing.

The claimant brought two appeals against case-management decisions in ongoing Employment Tribunal proceedings.

In the first appeal, the Employment Judge responded to an application to vary an in-person hearing so that a witness in Canada could give evidence remotely by directing the claimant to follow the Presidential Guidance on taking evidence from abroad. The Judge later confirmed that no Canadian consent was required and that the witness could give evidence remotely.

In the second appeal, the Employment Judge refused specific disclosure relating to another employee’s flexible-working request, stating that the material appeared irrelevant. The respondent subsequently supplied documents voluntarily, while maintaining that the other employee’s circumstances were different.

The central issues were whether the first direction involved an error of law and whether the disclosure refusal was adequately reasoned.

1. First appeal dismissed. The letter of 20 September 2024 was not a final refusal of a partly remote hearing. Properly read, it directed the claimant to follow the administrative process in the Presidential Guidance before a witness could give video evidence from abroad. It maintained the in-person listing pending that process and any necessary foreign-state consent.

   The claimant had supplied information required by paragraph 13 of the Guidance, but the administrative steps in paragraphs 15 to 18 remained to be completed. The direction was a case-management decision within the Employment Judge’s ordinary discretion and disclosed no error of law. The subsequent confirmation that the witness could give evidence from Canada in any event achieved the requested partly remote arrangement.

2. Second appeal allowed. The Employment Judge’s unexplained conclusion that documents concerning Ms X’s flexible-working request were irrelevant was an error of law. The documents were prima facie relevant because the claimant alleged that home working was said to be unavailable in her team, whereas Ms X appeared to have been allowed to work from home. The documents might ultimately assist neither party, but that possibility required reasoned explanation.

3. The disclosure decision was revoked. No order for specific disclosure, and no remittal, was necessary because the respondent had voluntarily supplied Ms X’s application and the agreement to it, and stated that no meeting notes existed. The claimant could test the respondent’s explanation in cross-examination and could make a further, properly specified disclosure application to the Employment Tribunal if required.

• Employment Appeal Tribunal: first appeal against the Employment Judge’s direction concerning remote evidence from abroad dismissed; second appeal against refusal of specific disclosure allowed, with the refusal revoked.
• Employment Tribunal: Employment Judge Postle directed compliance with the Presidential Guidance for evidence from abroad and refused the claimant’s specific-disclosure application on relevance grounds.