Employment

Appeal Tribunal consisting of judge and single appointed member representing employers - litigant unaware of appointed member's status - tribunal having no jurisdiction to continue hearing

De Haney v Brent Mind and another (CA: Lords Justice Peter Gibson, Waller and Carnwath): 27 October 2003

The employee appealed against the decision of the employment tribunal dismissing her claim against her employer and a co-employee for discrimination and unfair dismissal.

The Employment Appeal Tribunal, after dismissing her appeal in relation to the claim against the co-employee at a preliminary hearing, set down the appeal in relation to the claim against the employer for hearing on a date to be fixed.

That appeal came before the presiding judge and an appointed lay member representing employers.

The employee, appearing in person, agreed to the constitution of the two-member appeal tribunal without knowledge of the status of the lay member.

During the hearing the employee, having learnt that the lay member was a representative of employers, sought to withdraw her consent, but the appeal tribunal continued the hearing and dismissed her appeal.

The employee appealed.

Paul Diamond (instructed by Coningsbys) for the employee; Helen Gower (instructed by Russell-Cooke) for the employer.

Held, allowing the appeal, that the power of the Employment Appeal Tribunal to conduct a hearing before a judge and one appointed lay member pursuant to section 28(3) of the Employment Tribunals Act 1996 was an exception to the requirement under subsection (2) that, to achieve equality of the interests of the parties, an appeal should be heard by a judge and either two or four appointed members, and ought to be narrowly construed; and that, since the consent given by the employee without knowledge of the status of the lay member was not a valid consent to confer jurisdiction to hear the appeal, the tribunal was not properly constituted.