Storer v British Gas Plc

This decision establishes that the statutory duty for tribunals to hear originating applications in public is mandatory. The court affirmed that publicity is a constitutional protection and that those seeking a private hearing bear the burden of showing necessity. A physical barrier to public access will make a hearing private notwithstanding good motives or the absence of actual exclusion. Where the rule is breached the tribunal's decision may be quashed and remitted for a public rehearing.

The appellant worked for the respondent for many years and alleged bullying and constructive unfair dismissal. His claim to the Industrial Tribunal was refused as out of time. A preliminary hearing was held in the office of the regional chairman behind a locked door. The Tribunal refused an extension of time. The Employment Appeal Tribunal dismissed the appeal. The Court of Appeal granted leave on the single issue whether the preliminary hearing had been "in public" under the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (Rule 8(2)). The central question was whether holding the hearing in the secure office breached the mandatory publicity requirement and, if so, what the consequence should be.

1. Disposition: The appeal was allowed. The Industrial Tribunal's decision was quashed and the matter remitted for rehearing before another tribunal. Permission to appeal to the House of Lords was refused.
2. The court held that the obligation in Rule 8(2) to hear originating applications in public is mandatory and not directory. Publicity for tribunal hearings is a fundamental protection against arbitrariness in the administration of justice (per Henry LJ).
3. The burden lies on those seeking to displace the general rule of publicity to show that a hearing in private is necessary to do justice or to prevent injustice. This is a matter of principle, not mere convenience. The court relied on the historic principle in [1913] AC 417 and related authorities to explain the required approach.
4. Whether a hearing is in public may be a question of fact and degree for the trial judge. Nevertheless the judge must properly account for the importance of the statutory rule and its exceptions. Administrative convenience or the absence of any actual exclusion of members of the public does not determine the issue.
5. On the facts the hearing in the regional chairman's locked office was a private hearing. The locked and signposted barriers made access impossible in practice and so defeated the statutory requirement. The Tribunal therefore lacked jurisdiction to sit in private under Rule 8(3), which did not apply.
6. Remedy: given the statutory importance of public hearings the appropriate course was to quash the decision and remit for a public rehearing. The factual questions about whether the claimant's illness made compliance "not reasonably practicable" are for a full panel of the tribunal to decide on rehearing.
7. The court observed that mediation had been suggested and should be reconsidered in light of the long service and health consequences said to arise from the employment.

• Court of Appeal (Civil Division): Appeal allowed; Industrial Tribunal decision quashed and remitted for rehearing. Permission to appeal to the House of Lords refused.
• Employment Appeal Tribunal: Appeal dismissed. Held that no arguable point of law; hearing described as public (overturned on appeal).
• Industrial Tribunal: Preliminary hearing in chambers refused extension of time; decision reserved and later refused (now quashed).