Johnson & Ors v Carnaud Metal Box [1997] UKEAT 531_97_2904

EAT
Johnson & Ors v Carnaud Metal Box
[1997] UKEAT 531_97_2904 · 1997-04-29

JUDGE D M LEVY QC :

We have an appeal against an Interlocutory Decision of an Industrial Tribunal in Leeds in the case of Ms C Johnson -v - Carnaud Metal Box. The appeal arises in the following circumstances.The Applicant, Ms Johnson, has commenced proceedings in an Industrial Tribunal relating to Equal Pay claims. There is a three-day hearing fixed for tomorrow, there having been already one postponement of the hearing.On 9 April 1997, Mr Peter Allen, on behalf of the Applicant, wrote to the Secretary of the Industrial Tribunal at Leeds requesting four Witness Orders in respect of persons who lived at Hull. Having named the proposed witnesses, the letter continued:
"They are the comparators for the applicants in Block A of the above case and have previously been identified to the tribunal. I require Witness Orders because the factory has closed down and they may have found alternative employment and be reluctant to attend. Also some employers do not voluntarily release employees and, indeed, it has been known that they penalise them, not openly, for attending as witnesses."
A week later the Industrial Tribunal replied, that is on 16 April, to that very reasonable request. The reply read:
"Thank you for your letter dated 9 April 1997. The matter has been referred to a Chairman of the Tribunal who has directed as follows:
'I am not prepared to make Witness Orders when it appears no approval has been made for voluntary attendance'."I suspect "approval" is a mistake for "approach". We do not know whether or not, from the letter which has been read to us, an approach was made or not. Following that letter Mr Allen promptly wrote to the people named in his earlier letter seeking their attendance. Following that, Mr Allen wrote on 18 April to the Regional Secretary saying this:
"Could I advise you that past practice has shown that in the majority of cases comparators are not normally sympathetic to those who they are being compared with and invariably do not volunteer. However, I have requested that the four individuals volunteer and if they say 'yes' could you tell me what the position would be if none of them turn up, would I then be granted an adjournment so that Witness Orders could be prepared and served. I would advise you that I consider this to be a gamble with substantial tribunal money as the majority of other people who have cases to be decided will already be present. However, as you have made your decision I will try and get the people to volunteer."
On 25 April, Mr Allen wrote again to the Secretary, this time by fax, stating that he had communicated with two of the comparators, who had informed him they were on holiday, but had no further response from the other two either to say that they would or would not be attending. He therefore requested five Witness Orders for other persons named in Hull. He said he was requesting more Witness Orders on the basis that "when I try to deliver them, if they are issued, I may find some of the witnesses on holiday, or not contactable".In reply to that letter the same day, by fax, the Tribunal answered as follows:
"The matter has been referred to the Chairman of the Tribunal who has directed as follows:
'I am not prepared to grant witness orders at this late stage. The cases have been listed for hearing for over two months, having been postponed from an earlier date. If the applicant's representative has not taken the precaution of arranging the attendance of his witnesses, he clearly places himself in difficulty. However, it is not appropriate for the Tribunal to make orders, which have a penal sanction attached, in respect of persons who have had little or no prior warning of the attempt to enforce their attendance'."It is on this correspondence that the appeal is mounted. Our reaction, before we received some authority, was that in cases such as this it is imperative that the Applicant has the Witness Orders, which are sought. In cases relating to equal pay, such witnesses can be crucial.Since discussing the application between ourselves, we have received a copy of a judgment of the NIRC in Dada v The Metal Box Company Ltd [1974] IRLR 251. In the course of the judgment Donaldson J. said:
"The necessity for issuing a witness order may result from a refusal of witness to attend voluntarily. But it may also arise where a witness does not reply to a request for an undertaking that he will attend, or where the witness equivocates or replies in such a way as to leave the applicant in reasonable doubt whether the witness will attend. A witness order may also be desirable where an employer is unwilling to release a witness. In the present case, the Tribunal had erred in law in refusing to issue the witness orders merely because there was no evidence that the witnesses were unwilling to attend voluntarily. "
In this case we are sure that if the Chairman had known of that passage of the judgment, he would have granted the witness summonses at an earlier date. It is most unfortunate if a three-day hearing has to be adjourned because witnesses are not available, but if the witness summonses had been issued at an earlier time, then perhaps the adjournment might have been unavoidable.We appreciate the problems that can ensue if a case is adjourned at the eleventh hour, but in the interests of justice, in our judgment, the Appellant is entitled to relief.We think the right course in this case is to allow the appeal to this extent: we order that Witness Orders be made as sought by the Applicant and order that the hearing should not start tomorrow and leave it to the parties to apply to the Chairman, if it is not possible for the other two days set aside for the hearing to be usefully used.