The Claimant is pursuing a number of complaints before the ET, including direct sex discrimination, harassment, victimisation and automatic unfair dismissal. She applied for a witness order to compel a female colleague to give evidence before the ET, but the ET declined to make the order without giving the First Respondent the opportunity to make representations. The Claimant asserted that the colleague could give evidence and produce documents that would be relevant to the issues raised in her claims before the ET, and she said that the colleague was previously willing to attend as a witness but declined to do so after entering into a non-disclosure agreement with the First Respondent. The Claimant contended that the ET erred in law in failing to consider the relevance of the colleague's evidence and the necessity of making a witness order, and it further erred in having regard to irrelevant factors, either in failing to carry out the requisite balancing exercise or in failing to have regard to the overriding objective.

The EAT held that the ET did nothing more than insert a permissible procedural step into its consideration of this application; that step was in accordance with the overriding objective and consistent with a more general concern to do justice in this case, and it was one that was open to the ET in exercising its case management discretion.