de Haney v Mind & Anor

The Court of Appeal held that the consent required by section 28(3) of the Employment Tribunals Act 1996 to permit an Employment Appeal Tribunal (EAT) to sit as a judge and one lay member must be informed consent. Where a party giving consent is not told that the single lay member is an employers' representative (so that there will be no employees' representative on the panel), that consent is not informed and the EAT lacks jurisdiction to hear the appeal.

The court applied the statutory "rule of equality" in section 28(2) restrictively, treating subsection (3) as an exception that must be clearly and fairly explained to an unrepresented party. Because the appellant was not informed of the lay member's status before consenting, the EAT's decision was vitiated by a procedural irregularity and the appeal was allowed and remitted to a differently constituted EAT.

Background and parties:

• The appellant, Miss J De Haney, had been employed by Brent Mind and brought complaints including race discrimination and victimisation connected with alleged protected disclosures under the Public Interest Disclosure Act 1998. After a seven-day Employment Tribunal hearing her complaints were rejected.
• She appealed to the Employment Appeal Tribunal. The EAT allowed part of the appeal to proceed against Brent Mind on a single ground and expedited a full hearing at her request.

Procedural posture:

• At the full hearing before the EAT the originally appointed three-member panel could not sit because one member withdrew. The appellant, unrepresented at the hearing, was asked in court whether she consented to the appeal being heard by only a judge and one lay member; she indicated consent at that time but later, when presented with a written consent form after the hearing had commenced, discovered that the lay member was an employers' representative and sought to have the EAT discharge itself. The EAT refused and, on the substance, dismissed her appeal.
• The appellant obtained permission to appeal to the Court of Appeal and challenged the EAT's decision on the ground that her consent under section 28(3) of the Employment Tribunals Act 1996 was not informed.

Issues framed by the court:

• Whether the consent of the parties under section 28(3) must include knowledge of whether the single lay member is an employers' or employees' representative.
• Whether the appellant in the present case gave informed consent to the two-member constitution.
• Whether, if there was no informed consent, the EAT had jurisdiction and what remedy should follow (for example, the Court deciding the merits or remitting to a differently constituted EAT).

Court's reasoning and conclusion:

• The court emphasised that section 28(2) creates a general rule of equality between lay representatives and that subsection (3) is properly construed as an exception. Consequently, consent to sit with fewer lay members must be given with sufficient information to be genuinely informed.
• Examining the competing statements and the judge's subsequent e-mails, the court concluded on the balance of probabilities that the appellant did not know, at the time she purported to consent, that the lay member was an employers' representative and so was not informed.
• Because informed consent under section 28(3) had not been obtained, the EAT lacked jurisdiction to determine the appeal. The Court of Appeal allowed the appeal under Civil Procedure Rule 52.11(3), set aside the EAT's decision and remitted the matter to a differently constituted EAT. The court declined to decide the substantive merits itself, emphasising the specialist role of the EAT and the importance of the statutory right to a properly constituted panel.
• The court also recommended better practice: written consent should be obtained before a hearing and the form should disclose that the normal statutory rule is equality of lay representatives and should specify the status of the lay member who will sit.

Appeal allowed. The Court of Appeal held that the consent required by section 28(3) of the Employment Tribunals Act 1996 must be informed, including disclosure of whether the single lay member is an employers' or employees' representative; the appellant had not given informed consent, the EAT therefore lacked jurisdiction, and the decision of the EAT was set aside and remitted to a differently constituted EAT.

Appeal from an Employment Appeal Tribunal (His Honour Judge McMullen QC). Permission to appeal to the Court of Appeal was granted by Mummery LJ. The Court of Appeal permitted the appeal and remitted the case to a differently constituted EAT. Neutral citation: [2003] EWCA Civ 1637.