Bache v Essex County Council

An Employment Tribunal may regulate how a party or representative conducts a hearing, including by excluding irrelevant evidence and stopping prolix or disruptive questioning. It may not, without clear statutory authority, remove a representative chosen under section 6(1) of the Employment Tribunals Act 1996 or reduce that person to a McKenzie friend. A party’s failure to object immediately does not necessarily amount to acquiescence. Even where procedural error is established, rehearing is not automatic. An appellate court may uphold the decision if it is plainly and unarguably right and the error could not have affected the outcome.

Brenda Bache claimed breach of contract and constructive dismissal against Essex County Council after suspension and disciplinary proceedings. She was represented before the Employment Tribunal by a friend, Mr Leggett, who was not a lawyer or trade-union representative. During the hearing, the Tribunal considered that he was causing delay and confusion and directed Mrs Bache to conduct the case herself, while allowing Mr Leggett to assist in limited ways. The Tribunal dismissed the claim.

The Employment Appeal Tribunal dismissed her appeal, holding that the Chairman had power to control, and in rare circumstances disempower, a representative. The Court of Appeal considered whether the statutory right to representation was unqualified, whether Mrs Bache had acquiesced, and whether any procedural error required a rehearing.

1. Disposition. The appeal was dismissed unanimously, with no order as to costs. Peter Gibson LJ gave the leading judgment. Mummery LJ and Ferris J agreed with the result and with the essential reasoning.
2. Right to representation. Section 6(1) of the Employment Tribunals Act 1996 gives a party an unqualified right to be represented by the person whom he or she chooses, including a non-professional representative under section 6(1)(c). Regulation 9(1) and (2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 contains general procedural powers. Those powers do not provide the clear statutory authority required to remove the chosen representative or reduce that person to the status of a McKenzie friend.
3. Control of proceedings. The Tribunal remains responsible for the fair and business-like conduct of the hearing. It may exclude irrelevant evidence and argument and stop irrelevant, prolix or disruptive questioning and submissions. Parties and representatives must act fairly and reasonably and should respect procedural rulings, subject to appeal where a ruling involves an error of law. The Tribunal therefore had power to regulate Mr Leggett’s conduct, but not to dismiss him as representative. The question whether that power was improperly exercised did not arise.
4. Acquiescence. Mrs Bache’s apparent agreement to represent herself was not meaningful acquiescence. The Tribunal had presented its decision as having power to remove Mr Leggett, gave her little choice, and did not give her time to consider alternative representation. A party may also raise a procedural objection on appeal despite not objecting at the time, particularly where the party was unrepresented.
5. Effect of procedural error. Applying the principle in Dobie v Burn International Security Services (UK) Ltd [1985] 1 W.L.R. 42, a procedural misdirection does not automatically require remission. The decision may stand if it is plainly and unarguably right notwithstanding the error and the outcome would have been the same. The Court distinguished R v Leicester JJ, ex p Barrow [1991] 2 Q.B. 260 and R v Cheshire County Council, ex p C [1998] E.L.R. 66 because no material evidence or assistance had been lost. Mr Leggett remained available to assist, helped with questions and submissions, and the Tribunal’s decision principally depended on documentary records. The error therefore had no significant effect on the outcome.
6. Peter Gibson LJ observed that extreme conduct by a representative, with the party’s knowledge and approval, might amount to abuse of process or contempt. The Tribunal could not itself punish contempt, but contempt proceedings might be instigated, with reference to Peach Grey & Co v Sommers [1995] 2 All E.R. 513.

1. Court of Appeal (Civil Division) Permission to appeal was granted. The appeal from the Employment Appeal Tribunal was dismissed, with no order as to costs.
2. Employment Appeal Tribunal The appeal was dismissed. The EAT held that the Chairman had a judicial power to control the conduct of a representative and, in very rare circumstances, to disempower that representative.
3. Employment Tribunal The claim for breach of contract and constructive dismissal was dismissed after a hearing on 24 and 25 October and 2 December 1996.