Christopher Howells examines the test to be satisfied in order to secure a witness order before an Employment tribunal.
The power to make a witness order in an Employment tribunal can be found at schedule 1, r.32 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) (“the 2013 Regs”):
“32. The Tribunal may order any person in Great Britain to attend a hearing to give evidence, produce documents, or produce information.”
The Presidential Guidance issued under Rule 7 of the First Schedule to the 2013 Regs, as amended on 22 January 2018 supplements the above rule as follows (at Guidance note 3, point 7):
“An application for a witness order may be made at a hearing or by an application in writing to the Tribunal. In order that the Tribunal can send the witness order to the witness in good time before the hearing, it is important to make any application as soon as possible. A witness order might be refused if the attendance of the witness cannot be ensured in time”
It is clear from the terms of the rule and the guidance that the power to issue a witness order on application is discretionary. However that discretion must be exercised judicially. The overriding objective of dealing with cases justly is an important consideration.
Different cases will attract different reasons for/against exercising the discretion to issue a witness summons. However there are two pivotal issues that a Tribunal will have to engage with: the relevance of the witness evidence and the necessity for the witness order.
The importance of those two principles was highlighted by the NIRC (now the EAT) in Dada v Metal Box Company Ltd  IRLR 251.
The relevance test requires more than just an analysis of whether the witness gives evidence on a live issue. The significance of that evidence should also be examined since the exercise of the discretion requires a balancing exercise between the competing interests for/against granting the witness order. It follows that an application for a witness order in favour of a witness who gives evidence on a collateral issue (such as credibility only) may be more easily outweighed than in the case of a witness who is pivotal to the outcome of a key issue in proceedings.
In relation to necessity, Dada provided the following guidance:
“The necessity for issuing a witness order can arise in a number of ways. We agree that witnesses should always be invited to attend by the applicant before he applies for witness orders. If they agree to attend and the applicant is quite satisfied that they will attend, then it is unnecessary to issue witness orders…But there are a number of other cases that can arise. A witness may not reply to the request for an undertaking that he will attend. In those circumstances it may be necessary to issue such an order. He may refuse, in which case no problem arises for a witness order is clearly needed. Again, he may equivocate or give an answer which at any rate leaves the applicant in reasonable doubt whether the witness will attend in the absence of such an order. In such circumstances it will, of course, be a matter for the judgment of the tribunal, but we should not be in the least surprised if the tribunal thought it proper to issue a witness order…”
Even when the relevance and necessity tests can be satisfied that will not automatically result in a witness order being made.
An example can be found in the case of Haydock v GD Cocker EAT/1143/99/RN. The EAT upheld the Tribunal’s decision to refuse a witness order because the Claimant wanted to compel former colleagues to attend so that he could cross-examine them on key issues. Unsurprisingly those colleagues (who were not being called by the employer) did not want to attend at the Tribunal. Since a party is not permitted to cross-examine their own witnesses the application for a witness order was refused, despite the relevance and necessity tests being satisfied.
As for the timing of an application for a witness order there is nothing within the rules to restrict when such a request can be made. The Presidential Guidance (above) notes that it might be made at a hearing, which could include a final hearing. However litigants would be ill advised to delay submitting an application for a witness order, especially in respect of a key witness. Doing so creates the risk that the “attendance of the witness cannot be ensured in time” (see the Guidance above).
An application for a witness order should also seek to explain in clear terms why the relevance and necessity tests are satisfied in respect of the witness against whom the order is sought. If there are any other matters relevant to whether the witness order can be properly granted then these should also be addressed within the application.
Ultimately the power to grant a witness order is an important tool designed to give litigants the opportunity to present their best available evidence to the Tribunal. The expectation should be that such orders would be granted where (i) the evidence is relevant; (ii) the order is necessary; (iii) the attendance of the witness can be ensured in time.
6 March 2018