The claimant was bringing a claim of constructive unfair dismissal to the ET, stating that he had resigned because the respondent did not take seriously his concerns over health and safety. At the ET the respondent called witnesses but none were able to provide detailed evidence in relation to the claimant's working conditions at the time of which he was complaining, 2 years previously. The EJ then said he wanted to hear from two further witnesses so that they could get more evidence about the claimant's working conditions. Both the claimant and respondent opposed the issuing of witness orders and applied for them to be revoked. The EJ refused the revocation and the respondent appealed.

The EAT upheld the appeal. The issuing of the witness orders was perverse, and the Tribunal was wrong to refuse to revoke them.  As far as the parties were concerned, they did not wish to lead any more evidence and were ready to proceed to submissions.  There had been no question of the evidence of these two witnesses being discussed as relevant at the earlier case management discussion.  The parties had made it plain orally at the hearing and in writing in their subsequent applications for revocation that they did not wish these witnesses to be called to give evidence.  The witnesses in question were employees of the respondent on whom lay no onus so far as the issue of whether or not there was a constructive dismissal was concerned; further, so far as their evidence was concerned, it appeared that the claimant was satisfied that he could discharge the onus that was incumbent upon him without their being called.
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Appeal Nos. UKEATS/0011/12/BI

UKEATS/0012/12/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH EH3 7HF

At the Tribunal

On 22 May 2012

Before

THE HONOURABLE LADY SMITH, MISS J GASKELL, MR P HUNTER

ARNOLD CLARK AUTOMOBILES LTD (APPELLANT)

MIDDLETON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS C MILLER (Solicitor)

Pinsent Masons LLP
141 Bothwell Street
Glasgow
G2 7EQ

For the Respondent
No appearance or representation by or on behalf of Respondent

Practice and procedure. Whether competent for Employment Tribunal to call its own witnesses despite opposition from both parties. Tribunal's decision to do so set aside on appeal. Appeal against witness order upheld.

1. This is an employer's appeal against two decisions by an Employment Tribunal sitting at Aberdeen, Employment Judge Mr R Christie sitting with members, relating to witnesses dated 11 January 2012 and a date some time after 24 January but, as we understand it, prior to 6 February 2012. We will for convenience continue to refer to the parties as the Claimant and the Respondent. The Claimant was represented by Mr Lefevre before the Tribunal; he did not appear, nor was he represented, before us. The Respondent was represented by Mrs S Logie, solicitor before the Tribunal, and by Ms C Miller, solicitor before us.

1. Turning to the background, in his form ET1 the Claimant presents a complaint of unfair constructive dismissal. He resigned on 12 May 2010. In summary, he states that he resigned because the Respondent did not take seriously various health and safety concerns that he raised; in so doing, they breached the fundamental term of trust and confidence. They included concerns about his working conditions during renovation in 2008 2009 of the premises in which he worked. In its ET3 the Respondent denied having breached the implied term of trust and confidence; in particular, it stated that the Claimant had not been forced to work in conditions that were below health and safety standards and made averments in response to specific criticisms raised by him in that regard.

1. The Claimant's case was set down for a full hearing to begin on 9 January 2012, and the Tribunal heard evidence from the witnesses called by the parties on 9, 10 and 11 January 2012. None of the witnesses called by the Respondent were able to provide detailed evidence in relation to the Claimant's working conditions at the time of which he was complaining, although some direct and hearsay evidence was given on the matter. After the close of parties' evidence on 11 January, the Employment Judge stated that the Tribunal wished to hear from two further witnesses who had been employees of the Respondent at the relevant time, namely Trevor Munro and Steve Williams. He said that the Tribunal wanted to hear more evidence about the Claimant's working conditions.

1. Mrs Logie and Mr Lefevre both stated that neither party wished to lead evidence from any other witnesses and asked the Tribunal to decide the case on the basis of the evidence already presented. They were ready to proceed to submissions and wished to do so. For the Respondent, Mrs Logie also stated that there was concern as to what reliable evidence could now be given by these witnesses, it being over two years since the renovation work had started. The Tribunal indicated that orders would nonetheless be issued for the attendance of the witnesses. No reasons other than the Employment Judge's desire to hear more about the Claimant's working conditions were given orally, and no written reasons were issued by the Tribunal.

1. The Tribunal, on 16 January 2012, issued witness orders for both witnesses. By letter dated 18 January 2012 the Respondent's solicitor requested, under rule 11(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, that the witness orders be revoked. That application was supported by the Claimant, as confirmed and supported by detailed reasons in Mrs Logie's letter of 24 January 2012 to the Employment Tribunal from his solicitor Mr Lefevre.

1. The Tribunal were telephoned on behalf of the respondents on 6 February 2012 and they advised that the application for revocation of the witness orders had been refused. The Tribunal refused thus to revoke the witness orders and they fixed a further hearing, to take place on 10 and 22 February 2012. The Tribunal did not provide any written response to the application for witness orders. In the letters to parties advising them of the dates of the further hearing, despite the known position of the parties, namely that they did not seek to call any further evidence, paragraph 3 was in the following terms:

"You are responsible for making sure that all the witnesses you want to call can attend the hearing and know the place, date and time of the hearing."

1. The letter is silent on the subject of the witnesses Trevor Munro and Steve Williams.

1. This appeal was presented on 3 February and sifted through to a full hearing on 9 February; the Employment Tribunal accordingly cancelled the hearing fixed for 10 and 22 February.

1. Turning to the relevant law, the combined effect of rules 10(1), 2C and 27(7) would appear to support the proposition that, in principle, an Employment Tribunal may, of its own initiative, competently issue an order requiring witnesses to attend at a hearing and give evidence. It is, however, extremely difficult to think of circumstances in which it could possibly be appropriate and in accordance with the overriding objective to do so if the proposal to the issue of such orders is met with reasoned opposition by both parties. Employment Tribunals are not investigative bodies. It is not for them to decide what issues ought to be looked into or further looked into. If parties are opposed to certain witnesses being called, who is to take evidence from them? Whilst it is of course appropriate for the Employment Judge and members to ask questions of witnesses for the purposes of clarification of evidence given in response to questions put in examination in chief or cross examination, that is as far as it goes. It is not for them to run the case for either party or to embark on the exploration of a case of their own making, both of which would plainly be risks if they were to decide on and call witnesses themselves. We would add that it is no answer to say that it would be open to parties to object to the Tribunal's line of questioning; there would be a natural reluctance to do so, particularly on the part of an unrepresented party who may not be aware that he is allowed to do that.

1. Further, when considering the issuing of any witness order the Tribunal requires to consider whether it is justified, having regard to the nature of the complaint and principles of fair notice. What evidence can the witnesses give? How would it relate to the issues between the parties? Is it fair to insist on the evidence of that witness being part of the case in the face of opposition from either or both parties? What might be the cost implications for parties if there requires to be a further day or days of hearing? Is there liable to be any other prejudice to either party if the issuing of witness orders is going to cause delay or if, simply, witness orders are issued?

1. Finally, it is of course incumbent on any Employment Tribunal to refrain from making perverse decisions. A perverse decision is, inter alia, one that no reasonable Tribunal would in all the circumstances have reached. I refer, in that regard to the well known discussions on the subject in The County Council of Hereford & Worcester v Neale [1986] IRLR 168 and Yeboah v Crofton [2002] IRLR 634.

1. Turning to the appeal, Ms Miller, for the Respondent, addressed us on two grounds of appeal. The first was that the Tribunal's decision to issue the witness orders and then to refuse to revoke them was in all the circumstances perverse; the second was that they had erred in the exercise of the discretion available to them when parties sought revocation of the orders. Both grounds make essentially the same points, namely that in all the circumstances it was not open to the Tribunal either to issue the witness orders or to insist on them when they had the opportunity of revocation.

1. Ms Miller referred to the fact that this claim was one of constructive unfair dismissal. The onus was, accordingly, on the Claimant to show that the Respondent was in fundamental breach of contract so as to entitle him to resign. It was not for the Respondent to make the running. There was no obligation on them to provide any defence or to call any witnesses at all. No one had indicated that either evidence had relevant evidence to give. They had not featured as potential witnesses at the case management discussion that had taken place at an earlier date. She referred to the arguments listed in Mrs Logie's letter of 18 January, in particular: first, this was a claim for constructive unfair dismissal, and the onus was on the Claimant; secondly, the Employment Tribunal should have been able to reach a decision on the evidence led (the Claimant was apparently content that it was sufficient for his purposes); thirdly, there had been such a lapse of time as was likely to affect the quality of these witnesses' evidence; fourthly, calling these witnesses was not in the interests of justice nor was it required by the overriding objective, and it was not necessary to put parties on an equal footing, nor was it necessary for expedition or for fairness; finally, Mrs Logie, as was explained in her letter, might not have been able to attend at the suggested dates for a postponed hearing given the advanced stage of her pregnancy (if that had been the case, papers would have to passed to another solicitor as, we note, they have had to be for today's purposes).

1. These circumstances were not, she submitted, like those in the case of Dada v Metal Box Company Ltd [1974] ICR 559, whilst at the same time recognising the general guidance given by the National Industrial Relations Court in that case about the circumstances in which it would be appropriate to issue witness orders. She also pointed to the fact that this case had been postponed once already prior to the January hearing, and she made reference to the cases of [Neale and Ashton and Anor v Burbage and District Constitutional Club ]()[2012] UKEAT/0497/11, the latter by way of expressing recognition that it is only in a rare case that this Tribunal ought to interfere with an exercise of discretion by the Employment Tribunal; this was, however, one of those rare cases.

1. So far as the Claimant's position is concerned, in the written response to the Notice of Appeal, notwithstanding the fact that at the time the Claimant had acceded to the application for revocation of the witness orders and indeed had opposed their original issue, there is opposition stated to the present appeal in the following terms:

"While the attached letter submitted by the Respondent's solicitor to the Employment Tribunal dated 24 January 2012 supported the position then taken by the solicitor for the Appellant further consideration has led to the conclusion that the Employment Tribunal in continuing the case and ex proprio motu arranging citation of two additional witnesses was a decision within the Tribunal's powers and in the circumstances appropriate. The Appeal is thus opposed."

1. That is that the Claimant notes, correctly, that the Tribunal had power to do as they did. There is, however, no substantive argument in response to the grounds of appeal, all of which are directed at demonstrating that it was perverse of the Tribunal to exercise that discretion as they did.

1. Turning to our decision, we have no hesitation in upholding this appeal. The issuing of these witness orders was, we agree, perverse, and the Tribunal was wrong to refuse to revoke them. As far as the parties were concerned, they did not wish to lead any more evidence and were ready to proceed to submissions. There had been no question of the evidence of these two witnesses being discussed as relevant at the earlier case management discussion. The parties had made it plain orally at the hearing and in writing in their subsequent applications for revocation that they did not wish these witnesses to be called to give evidence. The witnesses in question were employees of the Respondent on whom lay no onus so far as the issue of whether or not there was a constructive dismissal was concerned; further, so far as their evidence was concerned, it appeared that the Claimant was satisfied that he could discharge the onus that was incumbent upon him without their being called.

1. All the reasons advanced by the Respondent and acceded to on behalf of the Claimant demonstrated to the Employment Tribunal that there was no fair or just basis on which they could insist on the witness orders they proposed. They unfortunately appear to have had their minds closed to that. All that remained was apparently the wish of the Employment Judge to hear from these witnesses; we do not know anything beyond that, as we have no written reasons from the Tribunal explaining how and why they considered it appropriate to adopt a course of action that they must have recognised was very unusual, to say the least; they certainly should have done.

1. The position as the Tribunal perceived it was that by the close of the evidence led by the parties there was a lack of evidence regarding the Claimant's working conditions at the relevant time. Interestingly, according to the Claimant's agent's letter of 24 January supporting the application for revocation of the orders, his concern seemed to be that the Tribunal were looking for evidence that would support the Respondent; equally, we can see that from the Respondent's perspective, particularly in the light of where the onus lay so far as the demonstration of fundamental breach of contract was concerned, it could have appeared that they were looking for further evidence that would support the Claimant. One way or the other, in insisting on citation of these witnesses the Tribunal also, accordingly, laid themselves open to a charge of apparent bias.

1. As we say, in all the circumstances we are readily satisfied that this appeal should be upheld. We will accordingly pronounce an order doing so, revoking the witness orders issued by the Tribunal to which we have referred and thereafter remitting the case to the Employment Tribunal for the purpose of hearing submissions without further evidence and determining the claim.