South Lanarkshire Council v Russell & Ors

An Employment Judge may exercise the wide case-management power under rule 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 when sitting alone. Where a pre-hearing review is conducted by a tribunal comprising the Employment Judge and lay members, however, a rule 10 order must be made by the full tribunal. The Employment Judge cannot hear the application with the lay members present and then decide it alone. That procedure creates an apparent risk of participation by the lay members and breaches the applicable rules and natural justice. A purported order must be read according to its terms and cannot readily be treated as a clerical or transmissional error where the defect is substantive. An appeal against a decision of a full tribunal must itself be heard by an appropriately constituted Employment Appeal Tribunal.

The appeal arose from approximately 1,800 equal pay claims concerning the implementation of a job evaluation scheme by the Council. During a pre-hearing review, the Employment Judge issued an order requiring additional information. The document stated that it was made by the Employment Judge alone under rule 10, although the application had been argued before the Employment Judge and two lay members of the tribunal.

The Council challenged the order, including its relevance and proportionality. The Employment Appeal Tribunal raised a prior issue: whether the order had been competently made, and whether this appeal could be determined by a Judge sitting alone if the order was in fact made by the full tribunal.

1. Appeal upheld. The order dated 4 November 2009 was incompetent, set aside, and the case was remitted to the Employment Tribunal to proceed as appropriate.
2. Rule 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 gives an Employment Judge sitting alone a broad power to make case-management orders, including orders varying or revoking earlier orders. Rule 18(2)(b) permits an Employment Judge at a pre-hearing review to issue an order in accordance with rule 10.
3. Where the pre-hearing review is conducted under rule 18(3) by a tribunal comprising the Employment Judge and lay members, rule 18(4) requires the relevant power to be exercised by the whole tribunal. The full tribunal may hear and determine the application, or the hearing may be adjourned so that the Employment Judge can convene a separate case-management discussion while sitting alone.
4. It is impermissible for the lay members to be present while the Employment Judge purports to conduct a separate case-management hearing alone. Objectively, their participation in the decision-making process cannot be ruled out, giving rise to an apparent breach of natural justice. It is equally impermissible for the full tribunal to hear the application while the Employment Judge alone deliberates or decides it.
5. The order expressly identified the Employment Judge as its maker and contained no identification of the lay members. It therefore could not properly be recharacterised as an order of the full tribunal. Nor could the defect safely be treated as a correctable transmission error under rule 37(1), since that provision concerns clerical and similar errors and cannot mask a substantive failure to comply with the procedural rules.
6. Even if the order had been treated as one of the full tribunal, the appeal could not have been determined by a Judge sitting alone. Under section 28(4) of the Employment Tribunals Act 1996, an appeal from such a decision required a Judge and two lay members. The Tribunal therefore refrained from determining the Council’s substantive arguments on relevance and proportionality.
7. The Employment Tribunal’s note stated that paragraphs 6 and 8 of an earlier order had been revoked, although the revocation was not included in the order itself. No attempt was to be made meanwhile to enforce those paragraphs.

• Employment Tribunal: During a pre-hearing review, the Employment Judge issued an order dated 4 November 2009 requiring the Council to provide additional information.
• Employment Appeal Tribunal: The appeal was upheld. The order was set aside and the matter was remitted to the Employment Tribunal.