C Di Fiore & Anor v Introhive UK Limited [2026] EAT 82

[2026] EAT 82

Case No EA-2022-000205-JOJ

EMPLOYMENT APPEAL TRIBUNAL

Venue Rolls Building, Fetter Lane, London

Date 09 June 2026

EC4A 1NL

Before

THE HON. LORD FAIRLEY, PRESIDENT

Between

Mr C Di FioreAppellant

Ms H QadriAppellant

Introhive UK LimitedRespondent

Iain G. Mitchell K.C.(instructed by direct access) for Appellants

Jen Coyne (instructed by Prettys Solicitors LLP) for Respondent

Hearing Hearing dates: 17 & 18 March 2026

JUDGMENT

[1]This is an appeal against a case management order made orally, with reasons, on 14 October 2021 and confirmed in writing on 11 February 2022.

[2]I will refer to the parties, as they were described below, as the claimants and the respondent.

[3]The claimants were employed by the respondent from October 2019 until January 2020 when both were dismissed. Having each been employed by the respondent for just over 3 months, neither claimant had the necessary qualifying period of service to bring a complaint of unfair dismissal contrary to sections 94 and 98 of the Employment Rights Act, 1996 (“ERA”). The claimants were, however, able to bring complaints that they had been subjected to detriments because they had made protected disclosures (section 47B ERA), and that they had been unfairly dismissed for the reason or principal reason of having made such disclosures (section 103A ERA).

[4]A liability and remedy hearing on those complaints took place by CVP over 9 days on 11 – 15 and 18 – 21 October 2021 at London Central Employment Tribunal before Employment Judge Goodman, sitting with Ms D Keyms and Mr T Cook. At points during that hearing, specific incidental applications were made, argued and decided. In relation to each of these, the tribunal gave oral reasoned decisions before continuing with the substantive hearing.

[5]One of those applications was made by the claimants’ counsel on 14 October 2021. It was for a witness order requiring the attendance at the hearing of a Mr Faisal Abassi, who was said to be able to give relevant evidence in relation to aspects of the whistleblowing complaints. After hearing submissions from the parties, and following a break for deliberations, the tribunal gave an oral decision with reasons refusing that application. The substantive hearing then continued.

[6]A reserved judgment with accompanying written reasons was sent to the parties on 8 November 2021. All of the complaints of both claimants were dismissed. At paragraph [11] of the reserved reasons, the Tribunal referred very briefly to the various applications made during the course of the hearing, but did not record what those were or what had been decided. It stated simply:

“As issues of privilege and anonymity were involved, which are difficult to disentangle, the reasons for the decisions made are set out in a separate case management summary. Reasons were delivered orally at the time.”

[7]Having received the reserved judgment and reasons, the claimants emailed the tribunal on 11 November 2021 to ask for the case summary management order. The Tribunal’s written record of the reasons for the case management orders, though signed by the Judge on 3 November 2021 was not ultimately sent to the parties until 11 February 2022. The reason for that delay is not clear.

[8]In the meantime, the claimants had sought to appeal against the substantive judgment of 8 November 2021. They were not permitted to do so because their appeal was not properly instituted within the time limit of 42 days in rule 3 of the EAT rules. A decision by the EAT Registrar not to extend the time limit was appealed. The appeal was heard by HHJ Auerbach and was refused (see Di Fiore v Introhive UK Limited

[2023] EAT 139

). The effect of that refusal was that the substantive liability judgment on the merits became final in the Employment Appeal Tribunal, subject only to any further appeal to the Court of Appeal.

[9]The substantial delay in issuing the case management summary, however, opened up another potential avenue of appeal against the decision taken on 14 October 2021 not to make a witness order in respect of Mr Abassi. On 18 March 2022, the claimants emailed the EAT seeking to amend the appeal against the substantive judgment of 8 November 2021 to add a further appeal against the written record of the case management orders and reasons sent on 11 February 2022.

[10]Correctly, the EAT’s administration treated the amendment application as a new and separate appeal against the 11 February 2022 case management order and assigned a new appeal reference number to it. Although reasons for the case management order had been given orally on 14 October 2021, in line with the principles described in Ameyaw v PricewaterhouseCoopers Services Limited,

UKEAT/0292/18/LA

, 11 December 2019 and Okoro & Anor v Taylor Woodrow Construction Limited & Ors [2010]

UKEAT/0318/10

, the time limit for an appeal ran from 11 February 2022 and the new appeal was, therefore, deemed to have been timeously instituted.

[11]In due course, the appeal against the refusal of the witness order was considered by a judge under rule 3(7) of the EAT rules and was considered not to be arguable. The claimants then requested a rule 3(10) hearing. At that hearing, the claimants submitted that the case management reasons did not accurately record certain oral submissions that had been made on the application. Directions were, therefore, given by HHJ Barklem including a request for the Employment Judge to provide her notes and to comment upon the points being raised.

[12]Following compliance with those directions, the appeal against the refusal of the witness order was referred back to HHJ Tayler for a final decision on the rule 3(10) application. HHJ Tayler concluded that, subject to amendment of the proposed grounds, the proposed appeal was arguable and should be allowed to proceed to a full hearing. The grounds of appeal were duly amended in March 2022, and it is those grounds that were before me in this appeal.

[13]Against that background, the purpose of this appeal – as the claimants’ counsel candidly acknowledged – is to pave the way for an out of time reconsideration application in relation to the Tribunal’s Judgment of 8 November 2021.

The proceedings below

[14]The claims were subject to extensive case management in the Employment Tribunal. On 4 December 2020, Employment Judge Stout made a series of case management orders which included the following paragraph: 4. Witness statements 4.1 The Claimant and the Respondent shall prepare full written statements containing all of the evidence they and their witnesses intend to give at the final hearing and must provide copies of their written statements to each other on or before 4pm, 6 September 2021. No additional witness evidence will be allowed at the final hearing without the Tribunal's permission. The written statements must:a. be typed in double line spacing;

b. have numbered paragraphs;

c. set out the relevant events in chronological order, with dates;

d. contain all the evidence which the witness is called to give;

e. be cross referenced where relevant to the documents in the bundle (including references to the page numbers of those documents);

f. contain only evidence relevant to issues in the case;

g. state the source of any information not acquired at first hand;

h. be signed and dated (prior to the hearing). Further case management hearings followed on 25 March 2021 and 23 April 2021. No further orders in relation to witnesses were made that are of relevance to this appeal. Witness statements were duly exchanged in accordance with the Order of 4 December 2020. The exchanged statements did not include a statement from Mr Abassi.

[15]The full hearing duly commenced on 11 October 2021. On the first day of the hearing, the respondent made clear that it saw no legal impediment to Mr Abassi giving evidence. On the third day of the hearing (13 October 2021), counsel for the claimants raised an issue about Mr Abassi which was noted in the following terms:

“I am wanting to give notice that I will be seeking (sic) an application to allow Mr Abassi to be called as a witness to give evidence. The background is already largely known to the tribunal. When approached by the first claimant, Mr Abassi refused to give evidence because he believed [that he was subject to a legal impediment which] prevented him from doing so. In addition, he made it clear that, were he to be forced to come, he would refuse to answer questions put to him. There are ways to get round that, but the reality of the situation was that a reluctant witness would not have been helpful to the Tribunal and a decision was made not to seek a witness order. On day 1, the respondent made it clear that [it did not consider that Mr Abassi was legally impeded from giving evidence]. In the course of discussions [with Mr Abassi] this information was imparted to him and he has indicated he would be prepared to give evidence. During the course of discussions he expressed nervousness that he was still afraid that it might open him up to [legal consequences] unless compelled by means of witness order to come. There is a discussion ongoing with him. He might change his mind. I will say that I am seeking leave for Mr Abassi to be added as a witness in these changed circumstances [and] [g]iving notice that I may, and will know by the afternoon, whether I am asking for a witness order to compel his attendance. He speaks to short compass. A short witness statement is being prepared.”

[16]The application to add Mr Abassi as a witness was strongly resisted by the respondent and was ultimately refused by the Tribunal on the basis that it was too late and would disrupt the timetable previously fixed for the hearing.

[17]The next day (14 October 2021), counsel for the claimants indicated that he had not, in fact, made an application on 13 October for Mr Abassi to be added as a witness. He had merely intimated an intention to do so. On 14 October, however, he made an application to adduce evidence from Mr Abassi and for a witness order to compel his attendance. Counsel advised the Tribunal that whilst a draft witness statement had been prepared, Mr Abassi would not revise or sign it. This was why a witness order was necessary. The draft witness statement was not produced to the Tribunal.

[18]The Tribunal was referred to Remploy, and counsel then made the following submission on his understanding of the scope of Mr Abassi’s evidence:

“He will speak to the alleged protected disclosures made to him. He will speak to who else within the organisation had knowledge of those protected disclosures. He will speak to the conversations between him and the claimants. He will speak to the conversation between him and other people in the organization specifically regarding the protected disclosures. He will speak to the apparent absence of documentation of those communications. Will speak to who gave the order to dismiss the applicants and to whether that order was motivated by or based upon the alleged protected disclosures.”

Counsel submitted that the evidence of Mr Abassi “could not be more relevant”. It was submitted that issues of timetabling were capable of being “worked around” and that it might be possible for his evidence to be interposed during the respondent’s case.

[19]It was common ground that Mr Abassi’s evidence was of potential relevance. The applications were again, however, strenuously opposed by the respondent on the basis of timing, an absence of fair notice and prejudice. It was submitted, in particular, that it was unfair to the respondent for a new witness to be added on the fourth day of the hearing, and that to do so would inevitably disrupt the timetable and cause the case to go part-heard.

[20]The Tribunal treated the application for permission to call Mr Abassi as an application for reconsideration of the ruling it had already made on that issue 13 October 2021. Separately, it considered the application for a witness order. It refused both applications and gave oral reasons.

The decision on liability

[21]In due course, the Tribunal issued its decision on liability. In summary, it concluded that whilst the claimants had made protected disclosures, they were not subjected to the claimed detriments on the ground of having made such disclosures, nor were the disclosures the principal reason for their dismissals.

The Tribunal’s written reasons

[22]In the written reasons provided by the Tribunal in February 2022, it described the developments on 13 and 14 October 2021 and the decisions taken by it on those dates in the following terms:

“13 October 13. On the afternoon of day three the claimants applied for permission to adduce evidence from Mr Faisal Abassi. It was said he had now indicated that if there was a witness order he would be prepared to give evidence and a statement was being prepared. After reviewing the hearing timetable with counsel, and having regard to the overriding objective, permission was refused. No explanation was given why an order had not been discussed with Mr Abassi before now, and he had always been an obvious candidate as witness; there was a clear disadvantage to the respondent in late disclosure of a witness statement which might require further instructions and preparation; to admit further evidence now, requiring cross-examination on several disclosures of information would make it very difficult to conclude the case in the 10 day time allocation, even if remedy was deferred to a further hearing, and would cause substantial delay in reaching the outcome. 14 October 14. On the morning of day four the claimant applied again in respect of Mr Abassi. It was said first of all that the previous day’s application for leave to call him without a witness statement had not been an application but an intimation of intention to make one, alternatively that this was an application to reconsider. 15. There was also an application for a witness order for his attendance. The tribunal was referred to Remploy v. J Lowen-Bulger UKEAT/0027/18, on making a witness order. The relevance of the evidence the witness could give must be considered. Other factors must be weighed to assess whether it was proportionate to make or not make an order, having regard to the overriding objective. It was stated that Mr Abassi had now made it plain that he was a reluctant witness. A draft witness statement had now been sent to him and he had refused to reply. 16. After hearing argument the tribunal adjourned to discuss. The application was refused. His evidence was of course relevant to two of the first claimant’s disclosures and one of the second claimant’s, and to alleged remarks about troublemakers, and what not to say to Mr Walchli 17. In exercising the discretion on whether to make an order, the tribunal considered two alternative scenarios. If truly reluctant to cooperate, it might well be that when called he would answer any question unhelpfully, or say he could not remember, or did not wish to reply. He could be compelled to attend, but could not be compelled to answer. If that was the case, his attendance would occupy little hearing time, but was unlikely to assist the tribunal’s understanding. 18. Alternatively, once called he would answer very fully on all issues. That might or might not assist the claimants or the respondents, but it would jeopardise the trial timetable set out by Employment Judge Stout in the first preliminary hearing. Even if remedy was postponed to a further hearing, the timetable was already tight (not least because of the number of case management applications made in the course of the hearing). It was essential that there was enough time within the time allocation for the panel to deliberate and make findings on the many disclosures, and the consequences of those disclosures on the detriments and dismissals. The panel’s other commitments meant that after 22 October they could not reassemble until mid-January 2022, which is obviously undesirable. It had always been clear that Mr Abassi was an important witness, and he had never been prepared to cooperate. Had the claimants made their application before – and there had been four preliminary hearings, the latest in August 2021, where they were represented - a day or so could have been added to the hearing allocation, but that was no longer possible. There was no new factor apparent leading to a need for a witness order. The tribunal concluded it was in the better interest of justice that they should be able to make findings while the evidence they had heard was fresh, not three months later. 19. Consequently, the tribunal decided not to make an order for the attendance of Mr Abassi. As for reconsideration, if he was reluctant to cooperate in giving a witness statement, permission to adduce evidence was unnecessary.”

Summary of submissions for the claimants

[23]The claimants advance three grounds of appeal. First, it is submitted that the Tribunal failed properly to apply Remploy Limited v. Lowen-Bulger

UKEAT/0027/18/RN

. Whilst it was accepted by the claimants that the Tribunal hadconsidered Mr Abassi’s evidence to be of potential relevance, it had nevertheless failed to make a qualitative assessment of how relevant or significant it was, and had thus erred in law. Secondly, the Tribunal had erred in law in failing to take into account relevant changes of circumstances consisting of the change of heart on the part of Mr Abassi following the acceptance by the respondent in its opening submissions that there was no legal obstacle to him giving evidence and his reluctance to sign a witness statement until a witness order was made. Thirdly, the refusal to grant a witness order for Mr Abassi was perverse.

Summary of submissions for the respondent

[24]The Tribunal had given correct self-directions upon Remploy and had applied those directions to the extent that it was possible to do so. Its reasons for refusing to grant the witness order disclosed no error of law. On a fair reading of those reasons, it had taken into account the apparent change of heart by Mr Abassi but concluded that it did not outweigh the other circumstances referred to by it at ET § 17 and 18. It had taken into account all relevant and material factors and had reached a conclusion that was properly open to it in the exercise of its case management discretion. Analysis and decision Ground 1

Analysis and decision

[25]In Remploy, a full hearing was due to commence on 5 February 2018. An order had been made for the exchange of witness statements by 17 June 2017. The parties had agreed – apparently informally – to depart from that timetable and had delayed the date for exchange first to 22 January 2018 and thereafter to 29 January 2018. On 25 January 2018, the respondent made an application for a witness order in respect of a witness whose statement had been prepared in draft form but who had thereafter disengaged from the process. The Tribunal refused the application on the grounds that it was made too close to the hearing date. It reasoned that the respondent must have been aware of the disengagement of the witness at a much earlier point in time, but had made no attempt to seek an order until just over a week before the hearing. The Tribunal was also not satisfied that the witness was genuinely reluctant and would not attend without an order.

[26]On appeal to the EAT, Eady J noted the observations of Sir John Donaldson in Dada v. Metal Box Company Ltd

[1974] IRLR 251

NIRC. There was no automatic right to a witness order. The matter is one for the Tribunal’s discretion. In exercising that discretion, there are two particular matters of which a Tribunal requires to be satisfied. These are:(a) “that the witness ... can [apparently] give evidence which is relevant to issues in dispute”; and

(b) “that it is necessary to issue a witness order”.

[27]In concluding that the Tribunal in Remploy had erred in refusing to grant a witness order, Eady J stated:31. I bear in mind that the decision whether or not to grant a witness order is one that an ET is particularly best placed to make. In making that decision, however, the ET will first need to be satisfied that the evidence of the witness in question is relevant to the issues to be determined and to form a view as to the potential significance of that evidence. That is an important matter because it is a factor that the ET will need to put into the balance - assuming it is satisfied that the evidence is relevant - when exercising its discretion as to whether or not to grant an order. Failure to carry out that initial assessment of relevance will, therefore, impact upon the correctness of the ET’s approach as a matter of law.

32. In the present case, the ET’s explanation for its decision makes no reference to the potential relevance of Mr Pandya’s evidence and provides no indication of the view it took in this respect. For the Claimant, it is said that it can be inferred that the ET had regard to this issue, that it had accepted that the evidence was relevant and had then gone on to consider whether to grant the application (so, assuming this point had been made out). Even if the Claimant is correct in that submission, however, that would not provide a complete answer. First, because, given the importance of the point, it is a matter that the parties are entitled to see referenced in the ET’s reasoning and it is not. Second, and more substantively, because it is impossible to see that the ET formed a view as to the potential significance of Mr Pandya’s evidence. Had it, for example, taken the view that his evidence was potentially relevant but did not have the importance the Respondent claimed, that might legitimately have fed into the balancing exercise the ET was required to carry out. In fact, in this case, it seems to be common ground that Mr Pandya’s evidence is likely to be of considerable significance, given the focus of the Claimant’s case and the allegations made. In the circumstances, the Respondent was entitled to be able to understand from the ET’s reasoning whether it had accepted that was the case and, if not, why not. Thus, even if the ET had assumed that the evidence was relevant, its decision does not demonstrate that it carried out an assessment of the degree of relevance, and that was either an error in approach or a failure to provide adequate reasons. In either respect, it renders the decision unsafe.

[28]Remploywas, therefore, an extreme case where the Tribunal took no account at all of the potential relevance of the evidence that the witness might give. That was not the position here. The Tribunal clearly recognised that, in general terms, Mr Abassi had the potential to give relevant evidence (ET § 16). For the Tribunal to have been able to assess the more nuanced issue of the significance of such evidence, however, it would have needed to have been told, at least in general terms, what Mr Abassi’s evidence was expected to be. In that regard, counsel for the claimants accepted that the draft witness statement of Mr Abassi that he had seen by 14 October 2021 was not shown to the Tribunal. It is also clear from the note of the submissions made on behalf of the claimants on 14 October 2021 that the full extent of the information provided to the Tribunal was simply a list of subject headings of the issues about which Mr Abassi was expected to speak. The Tribunal was given no information at all about the expected content of his evidence. Counsel nevertheless made two submissions on that issue.

[29]First, he submitted that it would not have been appropriate for him on 14 October 2021 to have relied only upon a draft witness statement from Mr Abassi lest he inadvertently misled the Tribunal about the content of the evidence he expected Mr Abassi to give. I do not accept that submission. There does not seem to have been any reason to suppose that the draft witness statement was materially inaccurate. There was no good reason not to advise the Tribunal of its contents in support of the application for a witness order. In any event, even if the non-production of the draft statement was based upon legitimate concerns as to its accuracy, that does not advance matters for the claimants. The Tribunal cannot properly be criticised for failing to assess the significance of Mr Abassi’s evidence when it had no basis for making any meaningful assessment of what that evidence might be. The very limited information provided to the Tribunal – consisting of no more than a list of issues – would have left the Tribunal having to speculate before it could have made any assessment of significance of the content of the evidence that Mr Abassi might give.

[30]As an alternative position, counsel submitted that the Tribunal did not need to know what evidence Mr Abassi would give as long as it was satisfied that such evidence was generally relevant and material to an issue that it had to determine. The assessment of “significance” required by Remploy was not of the content of the evidence itself but only of the issue to which the evidence was likely to relate. Even on the hypothesis, therefore, that Mr Abassi’s evidence would ultimately have been wholly unhelpful to the claimants, the Tribunal should still have assessed significance on that basis.

[31]I do not accept that this is a correct reading of Remploy. The criticism that the claimants make is not that the Tribunal wholly ignored the potential relevance of Mr Abassi’s evidence. Having regard to what the Tribunal said at ET § 16, that would not have been an arguable position. Rather, the proposition upon which this first ground stands or falls is that the Tribunal failed to carry out the qualitative assessment of Mr Abassi’s evidence and the relative balancing exercise referred to by Eady J at paragraphs [31] and [32] Remploy. For the reasons I have already given, however, the Tribunal was not in a position to do so without knowing, even if only in general terms, what evidence the witness Mr Abassi was expected to give. The claimants had a draft witness statement from Mr Abassi. They chose, however, to provide no information to the Tribunal as to the expected content of his evidence beyond a list of issue headings. A party who seeks a discretionary order for the attendance of a witness but who gives no indication of the likely content of the proposed evidence cannot then criticise the Tribunal for failing to assess the significance of the witness’s likely testimony.

[32]For these reasons, I reject ground 1. Ground 2

[33]At ET § 3 and 13, the Tribunal narrated the history of Mr Abassi’s reluctance to give evidence and his subsequent apparent change of heart. It is clear from its analysis at ET § 17 and 18 that the Tribunal remained unclear as to whether or not, even if compelled to attend, Mr Abassi would answer any questions. Even if he spoke up, the Tribunal had no information as to what his evidence might be. As a result, and through no fault on the part of the Tribunal, its ability fully to consider the Dada / Remploy questions was severely limited. The Tribunal was plainly correct to conclude that, whatever the claimants’ reasons or thought processes may have been, they made no application for a witness order to compel Mr Abassi’s attendance until 14 October 2021, which was the fourth day of the final hearing. The Tribunal noted the likely effect of granting a witness order at that very late stage upon the hearing timetable that was previously and carefully agreed. It is clear that it was these factors rather than the precise reason for the lateness of the application – whether good or bad – that were regarded by the Tribunal as material factors in the exercise of its discretion. That was a legitimate approach having regard to the over-riding objective. Nothing in the Tribunal’s reasons suggests, however, that it took into account a wholly irrelevant factor or left out of account a relevant and material one. I therefore reject ground 2.

Ground 3

[34]The bar is set high for any appellant who seeks to argue perversity in relation to a reasoned decision taken by a Tribunal in the exercise of a case management discretion. Nothing in the circumstances of this case or in the reasons of the Tribunal comes close to meeting that high standard.

Disposal

[35]The appeal is refused.