Employment Appeal Tribunal upholds refusal of late witness order application
The Employment Appeal Tribunal has dismissed an appeal regarding a refused witness order, confirming that Tribunals cannot assess evidence without sufficient case information.
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The Employment Appeal Tribunal (EAT) has dismissed an appeal brought by two former employees of Introhive UK Limited, confirming that a Tribunal was correct to refuse a witness order made during the middle of a hearing. The judgment reinforces the importance of procedural compliance and the duty of parties to provide sufficient information when seeking to compel witness attendance.
Background to the appeal
The claimants, Mr Di Fiore and Ms Qadri, brought complaints of whistleblowing detriment and unfair dismissal against their former employer. During the fourth day of their nine-day hearing, they applied for a witness order to compel the attendance of a Mr Faisal Abassi. They alleged he had relevant information regarding their protected disclosures.
The Tribunal refused the application. It noted that the claimants provided only a list of topic headings rather than the actual draft witness statement they possessed. The claimants argued that the Tribunal failed to perform a proper qualitative assessment of the evidence's relevance, as required by the case of Remploy Ltd v Lowen-Bulger.
The EAT's decision
The Lord Fairley, President of the EAT, rejected the appeal on all grounds. The judgment highlighted a fundamental issue: the claimants failed to produce the draft witness statement to the Tribunal. Without knowing the actual content of the evidence, the Tribunal could not reasonably be expected to assess its significance or weight.
The EAT found that the Tribunal's decision was not perverse. Furthermore, the Court noted that the Tribunal had correctly balanced the potential relevance of the witness against the impact on the hearing timetable. The judge emphasised that a party seeking a discretionary order for a witness, whilst failing to provide the content of that witness's expected testimony, cannot criticise the Tribunal for an inability to assess its importance.
Ultimately, the EAT concluded that the Tribunal had not acted upon irrelevant factors, nor had it ignored material considerations. The appeal was refused, effectively confirming the original outcome of the liability hearing.
Read the entire judgment here: Mr C Di Fiore & Ms H Qadri v Introhive UK Ltd [2026] EAT 82
