UK: NDAs And Tribunal Witness Orders – Which Prevails?

Last Updated: 8 August 2019
Article by David Whincup

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the other party to the proceedings and the individual in question then get the opportunity to argue that it should be rescinded, most usually on the basis that the individual has nothing relevant or helpful to say, and/or that other witnesses will already be saying the same thing such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 relevance of Ms L's evidence and the necessity to issue a summons in the face of the NDA she said, and not at the NDA and recent birth. She accepted that Ms L and PWRWG would get their chance to overturn the summons once it was granted, but said that the Tribunal was wrong to give them that chance in advance (presumably on the basis that obtaining the summons for Ms L would increase her bargaining position, and/or that it would be harder for Ms L to persuade the Tribunal to drop a summons it had already issued than not to issue it in the first place).

Christie lost her appeal. There was nothing in the Tribunal rules which required the Tribunal to hear the other parties' views before granting a witness order, but equally nothing which prevented it from doing so. In addition, the Tribunal had not yet actually refused to grant Christie the summons, but had just asked to hear from the other parties first. It remained possible that the summons would be granted. The EAT might not have done it the same way round as the ET, but that did not make it an error of law and so its decision stood.

For our purposes here, the EAT made it very clear that the existence of NDA in a settlement agreement would not prevent the issue of a witness summons in relation to facts covered by it. The ex-employer could have no claim against an ex-employee who, despite signing up to the NDA, then pitched up at the Tribunal hearing of someone else's claim. However, does the issue of a summons to attend the ET also require the employee to give any or any specific evidence? Rule 32 refers to "attending to give evidence" but contains nothing about which evidence or how well it should be given. It is hard to see that Rule 32 can impose any greater obligations in this respect than exist upon any other ET witness. Therefore, summonsed employees could flannel, obfuscate, forget, omit, hedge, confuse or misrepresent entirely innocently without any sanction or disadvantage, except perhaps to the party calling them. If the summonsed employee referred in Tribunal to matters covered by the NDA but which were entirely and obviously unnecessary for the case being argued, that might be one thing and legal action might lie. However, as soon as the employer's position in relation to a summonsed witness becomes that to comply with the NDA he/she should lie or refuse to co-operate in the judicial process (potentially risking proceedings for contempt) that would obviously be unsustainable and no action against the other party to the NDA could possibly succeed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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