NDAs And Tribunal Witness Orders – Which Prevails?

In all the hoo-hah around the use of NDAs in settlement agreement, no one yet seems to have asked the question of what happens if you sign such an agreement and are then called as witness to the Employment Tribunal anyway. Can you (or your former employer) rely on the NDA as a reason for not going or, for the more passive aggressive, for going but then declining to say anything?

And no-one quite asked it in Christie - v - Paul, Weiss, Rifkind, Wharton & Garrison LLP, either, though that did not stop the EAT commenting usefully on it anyway. In brief, a pregnant employee of PWRWG, Ms L, raised a complaint of sexual harassment (among other issues) against that firm which was settled on terms which included a NDA. As that was going on, Ms Christie brought similar claims of her own which concerned some of the same alleged perpetrators. Not unreasonably, she took the view that evidence from Ms L might well bolster her case. Ms L initially agreed to say her piece in Christie's Tribunal hearing, but then settled her own case and thereafter declined to assist her, praying in her defence both the NDA and also that the hearing would be within a few weeks only after the birth of her child.

Christie applied for a witness order in respect of Ms L under Rule 32 of the ET Rules of Procedure 2013. This says that the ET "may order any person in Great Britain to attend a hearing to give evidence, produce documents or produce information". Once the summons has been issued, the other party to the proceedings and the individual in question then get the opportunity to argue that it should be rescinded, most usually on the basis that the individual has nothing relevant or helpful to say, and/or that other witnesses will already be saying the same thing such that his/her involuntary attendance is unnecessary.

Traditionally the sole determinants of whether such a summons should be granted were whether the person had relevant evidence to give and whether it was necessary to issue the summons to get them there. On the face of it, the answer to both was yes. In this case, however, the Tribunal declined to issue a summons for Ms L "at this stage" saying that it first wanted to hear from PWRWG about its views on the relevance of what Ms L might say and to understand her concerns about the NDA and being grilled in the Tribunal so shortly after giving birth. Sensing her prize witness slipping out of her grasp, Christie appealed. The ET should have looked only at the...