Insaidoo v Metropolitan Resources North West Ltd

An unfair-dismissal claim based on asserting a statutory right is not among the proceedings that an Employment Judge may hear sitting alone under Employment Tribunals Act 1996, section 4(3). Section 4(1) therefore requires the claim to be heard by an Employment Judge together with two other members. A merits determination made by a one-person tribunal in such a claim is made without jurisdiction and cannot stand. The appropriate course is to allow the appeal and remit the issue for determination by a properly constituted tribunal.

The claimant appealed against an Employment Tribunal judgment dismissing his unfair-dismissal claim. The claim was treated as one alleging dismissal for asserting a statutory right under section 104, after the claimant had resigned. Although the ordinary unfair-dismissal claim was said to be subject to a one-year qualifying-service difficulty, the Employment Judge considered and dismissed the statutory-right issue on its merits.

The Employment Judge sat alone. On a preliminary appeal hearing, the EAT identified the jurisdictional issue: whether a claim of unfair dismissal for asserting a statutory right could lawfully be determined by a single Employment Judge.

1. The appeal was allowed. The issue was jurisdictional, not merely a challenge to the Employment Tribunal’s factual conclusions.

2. Under section 4(3) of the Employment Tribunals Act 1996, an Employment Judge sitting alone may hear only the proceedings listed there. Unfair dismissal for asserting a statutory right was not one of those proceedings.

3. Section 4(1) therefore applied. The claim, as identified by the claimant, had to be heard by an Employment Judge and two other members.

4. Because the claim had been heard and determined by a tribunal lacking jurisdiction to adopt that constitution, the determination could not stand. The EAT had no alternative but to allow the appeal and remit the remaining issue to the Employment Tribunal for determination by a properly constituted three-person tribunal.

• Employment Tribunal: Employment Judge Shotter, sitting alone, dismissed the claimant’s unfair-dismissal claim on 16 November 2009, with reasons promulgated on 27 January 2010.
• Employment Appeal Tribunal: At a preliminary hearing on 1 December 2010, the EAT dismissed the other grounds of appeal and directed a full hearing on the statutory-right issue. The present EAT allowed the appeal and remitted that issue for rehearing by a properly constituted tribunal.