Bari v London Borough Of Waltham Forest

An employment tribunal chairman may sit alone where the statutory discretion to do so has been properly exercised. The existence of a dispute of law may make solo constitution appropriate. A tribunal may strike out a claim where a party fails to provide particulars ordered by the tribunal and those particulars are fundamental to establishing the alleged breach of contract. An application to reinstate an appeal should be refused where the proposed appeal has no realistic prospect of success.

The appellant sought reinstatement of three appeals against decisions of the Employment Appeal Tribunal concerning pension-related employment claims against a local authority. Two applications were argued before Keene LJ. The first concerned whether the employment tribunal had been wrongly constituted because its chairman sat alone. The second concerned strike-out for failure to provide ordered particulars explaining how an alleged failure to exercise a pension discretion amounted to breach of contract. A third application was adjourned because the appellant’s representative became ill.

1. Applications 2000/3118 and 2000/6398 refused. Application 2000/6397 adjourned and reserved to Keene LJ.

2. In relation to application 2000/3118, the employment tribunal chairman had an undoubted discretion under Employment Tribunals Act 1996, section 4. The dispute involved a relatively complicated issue of law concerning an alleged contractual obligation to inform an employee about pension rights. That constituted a relevant consideration under section 4(5), namely the existence of a dispute of law making it desirable for the chairman to sit alone. There was therefore no realistic prospect of establishing that the discretion had been incorrectly exercised.

3. The decision in Sogbetun v London Borough of Hackney [1998] IRLR 676 was relied upon for the proposition that the chairman must evaluate the matters specified in section 4(5) before deciding to sit alone. The present court nevertheless concluded that the chairman was entitled to regard solo constitution as appropriate on the facts.

4. In relation to application 2000/6398, the failure to provide particulars caused prejudice to the respondents because the particulars were fundamental to the claim. The employment tribunal was entitled to strike out the claim after the appellant failed to comply with its order, and there was no realistic argument with a prospect of success.

• Employment Appeal Tribunal: dismissed the appellant’s pension-related claims and upheld the relevant strike-out decision. The dates stated in the judgment were 7 July 2000.
• Court of Appeal (Civil Division): refused reinstatement of applications 2000/3118 and 2000/6398 and adjourned application 2000/6397.