Birring v Rogers & Moore (t/a Charity Link (Jurisdictional Points) [2015] UKEAT 0388_14_2503
[13]The question of the exercise of the discretion was addressed authoritatively in the case of Gladwell v Secretary of State for Trade and Industry [2007] ICR 264 by Elias J. What he said between paragraphs 46 and 55 bears repetition. In particular, he noted (paragraph 46) that the starting point was to recognise that there is a discretion conferred upon the chairman and, like all discretions , “… it is one which he has to consider exercising in an appropriate case. ” The default position, however, in cases of unfair dismissal and other cases falling with subsection (3) was for the matter to be heard by a chairman alone and (paragraph 47) he saw nothing wrong in the Tribunal Office operating a standard practice that all cases in that category would be listed before a chairman alone:[47]“ 47. … but the parties are given an opportunity of making representations as to why a full panel should be constituted. Plainly if representations are made then the allocation direction will have to be reconsidered and brief reasons given for the decision. I also agree with the tribunal in Clarke v Arriva Kent (Thameside) Ltd that section 4(5) requires that the discretion is one to be kept under review. 48. It is important that the chairman charged with hearing the case should have regard to the possibility that the situation may have changed from when the original decision to have the matter heard by a chairman alone was taken. I have no doubt that in practice the chairman allocated the case will know of the practice and be alert to the continuing duty to consider calling a panel.” It is a matter of regret that the Judge here was not so alert, nor alerted by others. 14. At paragraph 49 Elias J said:[49]“ 49. In practical terms there will be many cases for which a chairman sitting alone is qualified where there is nothing about the case which causes that chairman to consider that this might be a situation where the full panel would be appropriate. In those circumstances the discretion will be exercised if only in a negative sense … There is in my judgment no legal duty for the judge at the substantive hearing to invite any observations from the parties. Having said that, it would usually be prudent for the chairman to do so …[50]… I do not consider that the chairman who fails to give reasons for not departing from the usual rule is thereby committing an error of law, unless the issue has been raised explicitly by one of the parties. If and when the decision (or apparent lack of it) is challenged on appeal, and the appeal raises a real issue as to whether a full panel should have been called or not, then it is open to the appeal tribunal to ask for reasons as to why the discretion was exercised as it was .[51]I would not, therefore, endorse the approach in Clarke v Arrive Kent Thameside Ltd based upon Sogbetun [1998] ICR 1264 that the failure of the chairman in that case to give reasons or canvass the views of the parties of itself amounted to an error of law which could not be remedied by reasons given later …[52]I would, however, respectfully disagree with Lindsay J that the only circumstance in which a chairman is obliged actively to consider exercising his discretion is if the parties raise the issue. Litigants in person may occasionally be unaware of the possibility of a different constitution (although they should have been alerted to the possibility in the notice of hearing); perhaps more significantly, they may not appreciate the potential merits of that course. So there must be some cases where the chairman hearing the case should actively consider exercising the discretion even where the issue has not been drawn to his attention.[53]Equally, I agree with Morison J that the fact that the parties have positively agreed to the jurisdiction of the chairman sitting alone does not inevitably and in all cases preclude a successful challenge …”15. I note that those principles have been confirmed and adopted by HHJ Peter Clark in the case of Stirling Developments (London) Ltd v Pagano [2007] IRLR 471 . They were applied again in the case of Weedon v Pinnacle Entertainment Ltd 18 November 2011 UKEAT/ 0217/11 and 0218/11.16. I too would endorse those statements of principle. But I would add to them and note that they were reached in the particular circumstances of a case in which there was, on the wording of the statute, a default position in favour of there being a chairman alone. They did not deal with the situation which is before me, which is where there is a claim, as there often nowadays is, before a Tribunal in which a claim in respect of unfair dismissal is combined with another claim. Some idea of the frequency with which that might occur may be given by two sets of statistics, though each is incomplete. The first personal communication is from the former President of Employment Tribunals (England and Wales) to the effect that there are on average between two and three jurisdictions referred to in every claim heard. The second was obtained as a result of a suggestion by HHJ Serota on the sift in respect of this case as to the information, if there was any, as to the extent to which Tribunal Judges sat alone in cases of unfair dismissal.17. The response received from the HMCTS Performance Analysis and Reporting Team was that in Full Hearings in claims accepted by the Employment Tribunal between 6 April 2012 and 31 December 2014, which included unfair dismissal as a jurisdiction, there were 10,600 cases in which the Employment Tribunal Judge sat alone. There were 5,000 in which the Judge sat with members. It may therefore be that there may yet be a number of cases in which a jurisdiction in respect of unfair dismissal is linked in the claim to a jurisdiction in respect of which a Judge has no choice but to sit with members. In such a case it is my view, having listened to the submissions of Ms Barney, that a Judge should actively consider with the parties whether he should exercise his discretion to sit with members insofar as the claim relates to a jurisdiction within subsection 4(3).18. My reasoning is this. The statute provides for a discretion. The principles in Gladwell recognise that the discretion is not only to be exercised initially, though it may be negatively exercised, in effect, but also kept under review. I would add to Elias J’s statement of law that the decision should be expressly and actively considered in any case in which there are combined jurisdictions, one of which requires a full Tribunal, one of which usually does not. Then the Judge will have to decide whether there should be a split hearing, one part of the claim to be heard by a full Tribunal, the other part or parts to be heard by a Judge alone. This so obviously requires good reason for it (since it will interact with the obligations of the Tribunal to apply the overriding objective) that in my view it demands specific consideration. Here, for instance, if the Judge had appreciated that he should sit with lay members in respect of the detriment claim, it is difficult though not impossible to think that he would immediately have directed his mind to whether he should sit with lay members also in respect of the unfair dismissal claim. As I have said, there would have to be good reasons for his not doing so. That is particularly the case since, as Ms Barney points out, if one is looking for the rationale behind the particular matters referred to in subsection (5), the emphasis seems to be that, if there are factual matters which require determination, that argues in favour of there being a full Tribunal, as opposed to issues purely of law, which would argue against.19. The distinction between the matters set out in subsection (3) and those which are excluded from it may well have something to do with Parliament’s appreciation of the degree to which factual considerations requiring some knowledge and experience of the workplace come into play. For my part I would add that there is an importance in the legitimacy of a decision which may be conferred by there being lay members from both wings of industry, but that may simply be the consequence of the appreciation by those subject to the jurisdiction, both employers and employees, that there are matters of fact which may peculiarly be advantaged in their determination by being scrutinised by those who have experience from both perspectives at the workplace.20. In my view, in a case like this, a Judge should be and is obliged to exercise his discretion. To that extent I differ from the view expressed in Gladwell that there was no such duty, but I do so whilst accepting entirely the correctness of Gladwell so far as the single case of unfair dismissal or other jurisdictions within section 4(3) are concerned. Even then that statement of principle was reached on the footing that the parties would at least know that they could make representations about the formation of the Tribunal (see paragraph 52). Litigants in person have become a yet more familiar feature of the legal landscape in employment cases than they were in 2006 when Elias J determined Gladwell . Over the last six years, for example, in this Appeal Tribunal, even though its jurisdiction is reserved to matters of law, there has been a shift from those cases in which at least one party has been professionally represented from 60% in 2009 to 40% in 2014. That is a very considerable shift, requiring the courts to consider carefully the procedures that they should adopt. It is a pity in this case that the Notices of Hearing did not, as plainly they did at the time of Gladwell , draw attention to the fact that submissions might be made as to the composition of the Tribunal. It may be a matter for the President of Employment Tribunals (England and Wales) to consider afresh as to whether there should be any change in the wording of standard notices so that litigants in person know that they do not necessarily have to accept a Tribunal constituted as one or for that matter as three if there is good reason not to do so.21. I accept that, as Ms Barney puts it, the discretion here was one which should have been exercised, and the exercise should not simply in this case have been apparent from the fact that the Judge did what was usual in cases of unfair dismissal and sat alone. That could not safely be inferred in any case in which there is a mixture of jurisdiction. Had the Judge had regard to the factors listed in subsection (5) it is difficult, but not impossible, to think that he would have concluded that there had to be a hearing in which he sat with members. Had he had regard to the overriding objective, he would have borne in mind that the parties might not have been on an equal footing in their appreciation of composition (Rule 2A); that in a case like the present, though it will not necessarily be so in all cases, it is likely to be proportionate that this case would be one that the claims should be heard together and in such a case it would be unrealistic to think that the lay members, though sitting in the Tribunal room, would be there to determine only part of the claim that they were in fact hearing; that delay should be avoided and expense saved. Those considerations would argue strongly in favour of a relatively compact claim such as the present being heard in one go before a Tribunal. The Consequence22. The consequence is that in my view the Judge failed to consider whether to exercise his discretion. There was a discretion. He did not exercise it. Had he done so, it is highly likely that he would have determined that the claims should be heard together. So highly likely is that in this case that it seems to me that the appropriate order is that the appeal be allowed, and that the matters of unfair dismissal and detriment be remitted to a fresh Tribunal for determination. Plainly they cannot be determined by Employment Judge Hardwick who has already expressed himself as to the credibility of the Claimant and given his own view on the merits of the case. The Tribunal will sit as a Tribunal of three. The powers of this Tribunal allow me to make any order the Tribunal below might have done. I exercise it to order such a panel. But I expressly allow for the possibility that there may be a different exercise of the discretion by the Judge by saying that this direction as to composition may be departed from if, upon consideration, a Judge of the Tribunal thinks there is good reason to do so in respect of the “pure” unfair dismissal claim. This has to be a judicial decision, however, and not simply one which is administratively reached. Costs23. The Claimant, through no fault of her own, had to bring the appeal and pay fees totalling £1,600 in order that she could obtain a hearing before a properly constituted Tribunal. Under Rule 34A(2A) “If the Appeal Tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying the respondent pay to the appellant an amount no greater than any fee paid by the appellant under a notice issued by the Lord Chancellor.”24. This was a case in which it was necessary to bring the appeal. In fact, it is a pity that the Respondent blew hot and cold as to the appeal, as I have demonstrated, since a formal order, without the need for the additional expense and inconvenience of attendance, would have been possible had the Respondent agreed, as plainly at one stage the Respondent seemed minded to do. As between the parties, therefore, the Respondent must, in my view, pay to the Claimant £1,600, representing the appropriate award under Rule 34A(2A). I see no reason for reducing it.25. As to the Respondent’s position, it may wish if it chooses, as to which it will have to seek its own advice, to consider whether, in the particular circumstances of this case, there may be any proper case for approaching the Tribunal Service for payment of all or part of the money which it will have to pay to the Claimant. But that is a matter between it and the Tribunal Service, arising out of the particular facts of this case, about which I should say no more.26. Accordingly, the appeal is allowed, and costs are awarded as I have stated.