Employment Law

The Employment Appeal Tribunal gave guidance on the procedure to be adopted in determining whether a hearing is to be before a chairman alone or by a full panel: (i) this question is a matter for judicial, not administrative, decision;  (ii) interim case management decisions will be dealt with by a chairman alone (r 17(1)).

The chairman conducting the case management discussion (CMD) should inform the parties whether, in his opinion, the substantive hearing should be before a full panel or a chairman alone, and invite submissions as to whether he should exercise his discretion under s 4(5) of the Employment Tribunals Act 1996  (ETA 1996) for the hearing to take place before a full panel. 

A simple explanation of the respective forms of trial should be given to the parties, particularly unrepresented parties. If representations are made, he should rule on the point, giving brief reasons for his ruling;  (iii) where no CMD has been held, a chairman must ensure that the notice of hearing sent out under r 27(1) states whether the hearing is to be before a full panel or chairman alone;  if the latter, parties should be expressly invited to make representations if they wish as to why the hearing should take place before a full panel, giving reasons, including those factors referred to in ETA, s 4(5).

Any such representations will then be considered, after obtaining the views of all parties, and a judicial decision, with reasons, made by a chairman; (iv) in either event, a judicial decision has been made which is susceptible to appeal.  Absent any representations or appeal, the mode of hearing is settled, subject to any change of circumstances which requires the hearing chairman to revisit the question of composition.

Absent any such point being raised, the final hearing is not susceptible to challenge on a point of law, the relevant judicial decision having been taken earlier, either at a CMD or in the form of standard directions.