To Be Alone, or Not Alone?

Thu, 26 Mar 2015

President Langstaff has issued new guidance to Tribunals on when they should consider sitting with or without members, when there is a mix of claims before them – Birring v Michael Rogers and Carolyn Moore t/a Charity Link UKEAT/0388/14/RN.

Helen Barney succeeded in persuading President Langstaff that where there is a mix of jurisdictions before the Tribunal, consisting of complaints where a Judge is entitled to sit alone (section 4(2)-(3) ETA 1996), and those in which they cannot, a Judge is obliged to “actively and expressly” consider with the parties whether the claims that would ordinarily be heard by a judge sitting alone should be heard with members (pursuant to section 4(5) ETA 1996)).

The decision marks a shift from the earlier authority of Gladwell [2007] ICR 264 in which Elias J concluded that there was no legal duty for the Judge at the substantive hearing to invite observations on the composition of the Tribunal.  That case however concerned a single claim in which the default position was that a Judge would sit alone, and the parties had been asked for representations on the composition of the Tribunal in the notice of hearing. 

Representatives should therefore be alive to the need to address the Tribunal on composition in the event of a mixed jurisdictional claim.  

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