C Di Fiore & Anor v Introhive UK Limited

An Employment Tribunal has a discretionary power to make a witness order. The applicant must show that the proposed witness can apparently give relevant evidence and that an order is necessary. Where the application is made late, the Tribunal may weigh relevance and potential significance against disruption, prejudice, uncertainty about the evidence, and the overriding objective. A Tribunal cannot be criticised for failing to assess the significance of evidence where the applicant provides no meaningful indication of its likely content. A reasoned case-management decision will be regarded as perverse only in exceptional circumstances.

The claimants appealed against an Employment Tribunal’s refusal, on the fourth day of a nine-day whistleblowing hearing, to order the attendance of a reluctant witness. The claimants had a draft witness statement but did not produce it. They instead provided only headings describing the topics on which the witness might give evidence. The Employment Tribunal refused the application because of its lateness, the risk of disruption and delay, and uncertainty whether the witness would assist the Tribunal even if compelled to attend.

The claimants argued that the Tribunal had failed to assess the qualitative significance of the proposed evidence, had overlooked relevant circumstances, and had reached a perverse decision.

1. Appeal refused. The Employment Tribunal had correctly recognised that the proposed witness might give relevant evidence. It was not, however, in a position to make a meaningful qualitative assessment of its significance because the claimants supplied no information about the expected content beyond a list of issues.

2. Under Remploy Limited v Lowen-Bulger, following Dada v Metal Box Company Ltd, there is no automatic right to a witness order. The Tribunal must be satisfied that the witness can apparently give relevant evidence and that it is necessary to make the order. The assessment of potential significance requires some meaningful knowledge of the evidence the witness is expected to give.

3. The Tribunal was entitled to consider the two possible consequences of compelling attendance. The witness might remain uncooperative and give little useful evidence, or might give extensive evidence that jeopardised the carefully fixed timetable. The Tribunal was also entitled to give weight to the fact that the application was made only on the fourth day of the final hearing, despite the witness having long been an obvious potential witness.

4. The Tribunal took account of the witness’s apparent change of heart and the circumstances surrounding the late application. It was legitimate to focus on the practical consequences of the lateness rather than determine whether the claimants’ reasons for delay were good or bad. Nothing showed that a relevant and material factor had been omitted or that an irrelevant factor had been considered.

5. The threshold for perversity is high where an appellant challenges a reasoned case-management decision. The refusal of the witness order fell well within the range of decisions open to the Tribunal.

• Employment Tribunal: refused the applications to adduce evidence from, and to order the attendance of, Mr Abassi on 14 October 2021. The claimants’ whistleblowing claims were subsequently dismissed.
• Employment Appeal Tribunal: the appeal against the witness-order decision was refused.