Employment tribunals - review of decision - tribunal's reference to reported authority without notifying unrepresented party not breach of right to fair trial

Stanley Cole (Wainfleet) Ltd v Sheridan: CA (Lords Justice Ward, Buxton and Mance): 25 July 2003

The employee brought proceedings for unfair dismissal.

At the employment tribunal hearing, the employer appeared by a director in person.

The tribunal, after hearing the parties, gave judgment in the employee's favour and in so doing cited and relied on reported authorities without informing the parties or inviting comment.

The employer's appeal, claiming it had not had a fair trial, was dismissed by the Employment Appeal Tribunal.

The employer appealed.

The employer in person; Damian McCarthy (instructed by First Assist Group) for the employee.

Held, dismissing the appeal, that not to be afforded a fair hearing would be an obvious and serious procedural irregularity; that judicial research would be stultified if judges were prevented from citing cases not referred to by the parties; that, however, serious procedural irregularity might be established if the authority was central to the decision and altered or affected the way in which the issues had been addressed to a significant extent so that it truly could be said, by a fair-minded observer, that the case was decided in a way that could not have been anticipated by a party fixed with such knowledge of the law and procedure as would be reasonable to attribute to him in all the circumstances; that everything depended on the subject matter and the facts but, in the instant case, had the tribunal drawn the parties' attention to the authority it would not have affected the way their case had been presented and thus no serious procedural irregularity was established.