Storer v British Gas Plc

The requirement that an employment tribunal hear an originating application in public is mandatory. A hearing held behind a coded door in an area marked private is not public, even if no member of the public was actually turned away. The question may involve fact and degree, but the tribunal’s discretion must respect open justice and cannot be based on convenience or lack of courtroom space. The limited exceptions in Industrial Tribunals (Constitution and Rules of Procedure) Regulations, 1993 did not apply. Breach made the decision unlawful and justified quashing it and remitting the issue for a public rehearing.

Mr Storer brought a claim including constructive unfair dismissal after leaving British Gas. His originating application was presented nearly six months after termination. The Industrial Tribunal refused an extension of time under section 111(2) of the Employment Rights Act 1996 and dismissed the application.

The Employment Appeal Tribunal dismissed his appeal. It held that the preliminary hearing, conducted in a Regional Chairman’s office in a secure area, could be treated as public, and found no other basis for extending time. The Court of Appeal granted permission on the public-hearing issue alone. The central question was whether the hearing complied with Rule 8(2) and, if not, what consequence followed.

Appeal allowed with costs. Lord Justice Henry gave the judgment. Lord Justice Robert Walker and Mr Justice Scott Baker agreed.

1. Mandatory public hearing. Rule 8(2) imposed a mandatory requirement that every hearing of or in connection with an originating application take place in public. The obligation was not merely directory. The importance of open justice meant that the requirement had to be applied as a matter of principle, rather than according to convenience.
2. Meaning of a public hearing. The Court agreed in general terms with R v Denbigh Justices [1974] 3 WLR 45 that whether a court was sitting in public could involve fact and degree and the exercise of discretion. That discretion nevertheless had to respect the public-hearing rule. The principles in Scott v Scott [1913] AC 417 established the general importance of open justice and the limited nature of exceptions. McPherson v McPherson [1936] AC 177 showed that a hearing could be private where access was effectively barred by a door marked private, even without an intention to exclude the public.
3. Application. The hearing took place behind a locked coded door in a secure area marked private and no admittance. The absence of an actual member of the public seeking entry did not make the hearing public. Otherwise, the public-hearing requirement could be avoided simply by arranging that a case was not publicly accessible. The exceptions in Rule 8(3) did not apply, and no chambers procedure was available.
4. Consequence of breach. The mandatory requirement was fundamental to the function of the Industrial Tribunal. Its breach rendered the decision unlawful. The Court’s powers under Order 59, Rule 10(3) extended from remitting the matter for a public rehearing to deciding that no rehearing was necessary. Having regard to the importance of the right, the Court quashed the Industrial Tribunal’s decision and remitted the matter for rehearing before another tribunal. The rehearing was to focus on whether Mr Storer’s illness made presentation within time reasonably practicable under section 111(2) of the Employment Rights Act 1996. The Court also urged reconsideration of mediation. Permission to appeal to the House of Lords was refused.

1. Court of Appeal allowed the appeal with costs, quashed the Industrial Tribunal’s decision and remitted the matter for rehearing before another tribunal: [2000] EWCA Civ 528.
2. Employment Appeal Tribunal dismissed Mr Storer’s appeal, holding that the preliminary hearing could properly be regarded as public and that there was no basis for extending time. Citation not stated in the judgment.
3. Industrial Tribunal dismissed the application after refusing an extension of time under section 111(2) of the Employment Rights Act 1996.