The rules of procedure for tribunals state that if they make a decision without a hearing, they have to communicate that decision to all parties. In Jones v Secretary of State for Business, Innovation & Skills, the Employment Appeal Tribunal (EAT) held that this includes the decision to grant a witness order to a party to the proceedings.
Mr Jones lodged a tribunal claim against Bright International Training Ltd (BIT) for certain payments (including redundancy). As it subsequently went into liquidation the claims fell to the Secretary of State for Business, Innovation & Skills.
In the run-up to the hearing, BIT included a draft witness statement by Ms Thwaites, the company’s former marketing manager, which had been prepared for possible insolvency proceedings. This contradicted Mr Jones’ assertion that he had been a company employee.
In late November 2015, BIT explained in correspondence to Mr Jones that Ms Thwaites had not responded to requests to give evidence at the substantive hearing and that they might therefore need a witness order. The company duly applied to the tribunal for the order under rule 32 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, but without telling Mr Jones. (Rule 92 states that an application under rule 32 does not need to be copied to the other parties). The tribunal granted the order, but did not inform Mr Jones or his wife who was acting as his representative as it did not think it needed to do so under rule 32.
Ms Thwaites attended the hearing at the end of December 2015 but as Mr Jones and his wife were unaware of the order, they were surprised to see her there. As his wife was not legally trained, she was unaware that she could ask for an adjournment to allow one of their witnesses to attend who could rebut what Ms Thwaites might say.
Rule 32 gives tribunals the power to order anyone to attend a hearing and give evidence.
Rule 60 states that all decisions made without a hearing have to be communicated in writing to the parties.
Rule 92 states that when a party to a claim communicates with the tribunal (except under rule 32), it must send a copy to all parties, although tribunals can make an exception where it is in the interests of justice to do so.
The hearing went ahead and the judge found in favour of BIT, stating that, unlike Mr Jones and his wife, he found Ms Thwaites to be a credible witness.
Mr Jones appealed on the basis that the hearing was unfair as he should not only have been made aware of the witness order, but he should also have received a copy of it under rule 60. Although rule 92 provides an exemption for rule 32, he pointed out that the exemption was not invoked and in any event only applied in circumstances where a potentially vulnerable witness needed to be protected.
The EAT allowed the appeal, holding that as the decision to grant the witness order was a decision “made without a hearing”, rule 60 required that it had to be communicated to both parties, which the tribunal had not done.
Although the rules did not make any express provision for a power to withhold a decision that a witness summons had been granted, it would have to be implied by reading it into rule 32 in conjunction with rule 92. However, even if that power did exist (say in a case where an employee needed to be protected from the risk of reprisals by a current employer) this was not such a case.
The EAT also found that there was further procedural unfairness at the hearing, in that the judge did not adequately deal with the problem of the absence of Mr Jones’ rebuttal witness.
It therefore remitted the matter for a rehearing before a different employment judge.