de Haney v Mind & Anor

Consent to a reduced Employment Appeal Tribunal panel must be informed consent. A party must know that the ordinary statutory constitution provides equality between employer and worker representatives, that consent is required to depart from that constitution, and whether the lay member who will sit represents employers or workers.

Because the statutory equality rule is the general rule and the consent provision is an exception, the latter is construed restrictively. Where informed consent is absent, the EAT lacks jurisdiction to hear the appeal. The Court of Appeal should ordinarily allow the appeal and remit the case to a differently constituted EAT, rather than determine the merits itself.

An employee’s complaints of race discrimination, victimisation and detriment following protected disclosures were rejected by an Employment Tribunal. The EAT dismissed the appeal against the second respondent and allowed a single ground to proceed against the first respondent. At the full hearing, the employee and the first respondent consented to a two-member EAT panel.

The employee later discovered that the only lay member was an employers’ representative and asked the EAT to discharge itself. The EAT refused and dismissed the substantive appeal. The central issue was whether consent under section 28(3) of the Employment Tribunals Act 1996 had to be informed, and whether the EAT had jurisdiction to continue when that consent was not informed.

1. Appeal allowed. The EAT’s order was set aside and the appeal was remitted to a differently constituted EAT, with costs. The substantive merits were not determined.
2. Section 28(2) of the Employment Tribunals Act 1996 establishes the ordinary constitution of the EAT: a judge and an equal number of employer and worker representatives. That equality is a statutory safeguard to which Parliament attached importance.
3. Section 28(3) is an exception to the general rule and must be construed restrictively. Consent to a judge sitting with only one lay member is valid only if the party knows the normal three-member constitution, understands that consent is required to proceed with two members, and knows whether the lay member represents employers or workers.
4. The employee knew the first two matters, but the evidence showed, on the balance of probabilities, that she did not learn the lay member’s employer representation until after she had consented and the hearing had begun. Her consent was therefore not informed. The requirement of section 28(3) was not met, and the EAT had no jurisdiction to entertain the appeal.
5. Under Rule 52.11(3) of the Civil Procedure Rules, the procedural irregularity required the Court of Appeal to allow the appeal. Section 21 of the Employment Tribunals Act 1996 gave the EAT alone jurisdiction to hear the appeal from the Employment Tribunal. The appellant was entitled to have the specialist appellate body determine it. Only in exceptional circumstances should that right be displaced by this court deciding the merits.
6. The court also gave procedural guidance. Written consent should ordinarily be obtained before the hearing starts, and the EAT should ensure that the consent genuinely reflects knowledge of the statutory equality rule and the representative status of the sitting lay member.

• Court of Appeal (Civil Division): [2003] EWCA Civ 1637. Appeal allowed; the EAT’s order was set aside and the matter remitted to a differently constituted EAT.
• Employment Appeal Tribunal: The appeal against Ms Lang was dismissed. The appeal against Brent Mind proceeded on one public-interest-disclosure ground and was dismissed after the EAT continued with a two-member panel.
• Employment Tribunal: After a seven-day hearing, the employee’s complaints were rejected.