Jones v Corbin (t/a BOO)

A full Employment Tribunal must involve all members of the panel in case-management decisions made after the tribunal has been constituted for a full hearing. A chair cannot make such decisions independently under the power to make orders at any time. Late production of witness statements in breach of directions may make refusal of an adjournment procedurally unfair, particularly where the opposing party needs time to understand the evidence and take instructions. A pre-determined intention to refuse any adjournment is also procedurally irregular. The normal remedy for a failure to provide a fair hearing is to set aside the whole decision and remit the matter for a fresh hearing before a differently constituted tribunal where appropriate.

The claimant appealed against an Employment Tribunal decision which upheld her wrongful-dismissal claim but dismissed her unfair-dismissal claim. The respondent had failed to comply with case-management directions and produced witness statements and documents on the hearing day. The claimant applied for an adjournment so that she and her representative could consider the evidence and take instructions. The Employment Judge refused the application without consulting the two lay members. One member also recalled that the application would be rejected in advance. The central issue was whether the hearing and resulting judgment were procedurally unfair.

1. Appeal allowed. The Employment Tribunal’s judgment and order were set aside.
2. A full tribunal must decide case-management issues arising during a full hearing collectively. The chair’s power under rule 10 to make an order at any time does not permit the chair to act independently of the lay members. The failure to consult the members before refusing the adjournment breached the principle stated in Magenta Security Services v Wilkinson (UKEAT/0385/06).
3. The refusal of an adjournment was independently unfair. The witness statements had been produced on the day despite earlier directions. The claimant needed a proper opportunity to prepare to deal with the evidence, especially as English was not her first language. The evidence of a member that any adjournment application would be rejected also indicated pre-determination.
4. The Tribunal had additionally misunderstood the nature of the contention under section 104 of the Employment Rights Act and had made other inaccuracies, although the EAT did not determine grounds 2–4.
5. Applying Sinclair Roche & Temperley v Heard [2004] IRLR 763, the matter was remitted to a differently constituted Employment Tribunal for a fresh one-day hearing. The directions concerning witness statements and documents were to be complied with.

• Employment Tribunal: upheld the wrongful-dismissal claim, dismissed the unfair-dismissal claim and made no award under section 38 of the Employment Act 2002.
• Employment Appeal Tribunal: set aside the whole decision and remitted the case for a fresh hearing before a differently constituted tribunal.