The Claimant claimed that the reason for his dismissal was not, as the Respondent said, because his performance was unsatisfactory, but because of the racial dislike of the Claimant on the part of his line manager. The line manager no longer worked for the Respondent but had been in communication with them concerning his part in the case. He then ceased to communicate and 7 days before the hearing the Respondent applied for a witness order which the ET refused. The reasons given were 1) the application was made too close to the hearing when it could have been made earlier; 2) the witness had not being given advance warning; and 3) insufficient effort had been made to secure his attendance without a witness order. The Respondent appealed.

The EAT allowed the appeal. There was no indication that the ET has considered the relevance of the proposed evidence.