In Balmain v Atlas Cleaning Ltd the employer said that it had dismissed the claimants because the manager of the shop where they worked as cleaners had required them to be removed from that work. The claimants sought a witness order to compel the manager to appear as a witness at the hearing of the unfair dismissal claim, but the tribunal refused. The EAT allowed the claimants’ appeal, saying the witness was plainly one who had potentially relevant evidence to give.
Unfortunately the EAT gave no guidance as to whether the witness was to be regarded as the Claimants’ or the tribunal’s witness: if she was the claimants’ witness, they would not normally be permitted to cross-examine her, whereas if she was the tribunal’s, either party could cross-examine her. In the very rare cases where it is desirable to secure the attendance of a witness who is unwilling to provide a witness statement, it is probably better that the witness is called by the tribunal as its own witness for this reason.