Di Fiore and Qadri v Introhive UK: EAT rejects witness order appeal in whistleblowing case

The Employment Appeal Tribunal has dismissed an appeal against the refusal of a witness order in C Di Fiore & Anor v Introhive UK Limited [2026] EAT 82, in a judgement that clarifies the obligations on parties seeking to compel the attendance of a reluctant witness. Lord Fairley, President, held that a tribunal cannot be criticised for failing to carry out the qualitative assessment of a witness's anticipated evidence when the applying party has provided no meaningful indication of what that evidence would contain.

The underlying claim arose from the dismissal of two employees, Mr Di Fiore and Ms Qadri, following just over three months of employment with the respondent. Without the qualifying period for ordinary unfair dismissal, their claims proceeded on the basis of protected disclosure detriments under section 47B of the Employment Rights Act 1996 and automatic unfair dismissal under section 103A. A liability hearing took place over nine days in October 2021 before the London Central Employment Tribunal.

The witness at the centre of the appeal, Mr Faisal Abassi, had been an obvious candidate throughout the proceedings. He had nonetheless declined to cooperate, initially believing himself to be subject to a legal impediment to giving evidence. When the respondent clarified in its opening submissions that no such impediment existed, Mr Abassi indicated he might be prepared to testify, but only if compelled by a witness order. Counsel for the claimants raised the issue on day three of the hearing and made a formal application on day four.

Critically, by the time the application was made, the claimants held an unsigned draft statement from Mr Abassi. They chose not to produce it to the tribunal. Instead, they provided a list of subject headings describing the topics on which Mr Abassi was expected to speak, without any indication of the expected content of his evidence. The tribunal refused the application, citing the lateness of the application, the absence of any meaningful indication of what Mr Abassi would say, the risk to the agreed hearing timetable, and uncertainty as to whether he would answer questions even if compelled to attend.

All three complaints were dismissed at first instance. A subsequent appeal against the substantive liability judgement was refused as out of time. A separate and timeous appeal against the written case management order, issued after a substantial delay in February 2022, proceeded to a full hearing before the EAT.

The appellants argued that the tribunal had erred in three respects: failing to carry out a qualitative assessment of the relevance of Mr Abassi's evidence as required by Remploy Limited v Lowen-Bulger UKEAT/0027/18/RN; failing to weigh adequately the change in circumstances following Mr Abassi's apparent shift in position; and reaching a perverse decision.

Lord Fairley rejected all three grounds. On the first, he drew a clear distinction between the facts in Remploy, where the tribunal had taken no account whatever of the potential relevance of a witness's evidence, and the present case. Here, the tribunal had recognised Mr Abassi's potential relevance but was simply unable to go further. Without knowing even the general content of his expected testimony, it had no basis for the qualitative assessment the appellants demanded. Counsel's stated reason for withholding the draft statement, namely a concern about inadvertently misleading the tribunal, was rejected as unconvincing. There had been no good reason to keep the tribunal in the dark.

On the second ground, Lord Fairley found that the tribunal's written reasons disclosed no irrelevant factor taken into account, nor any relevant and material factor overlooked. The lateness of the application and its consequences for the timetable were plainly legitimate considerations in the exercise of the tribunal's case management discretion. On perversity, the standard was described as a high one, and nothing in this case came close to meeting it.

The judgement serves as a practical reminder that a party who seeks a discretionary witness order whilst withholding the available evidence of the witness's expected testimony assumes a significant procedural risk.

C Di Fiore & Anor v Introhive UK Limited [2026] EAT 82. Iain G. Mitchell KC (direct access) for the appellants; Jen Coyne (Prettys Solicitors LLP) for the respondent.