Freedom Choice Care Ltd v Buchanan

Under regulation 9(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, substitution of an Employment Judge or lay member previously selected for a hearing is a selection to be made by the President, Vice-President or Regional Employment Judge. The validity of a substituted member therefore turns on whether an authorised office-holder made the selection.

An assertion that no reference to the Regional Employment Judge was made during the hearing does not prove that the statutory selection process was not followed. Where the evidential position is insufficient, the proper course may be to obtain focused information from the relevant office-holder. If the substitution was valid, the decision whether the reconstituted tribunal should proceed is a case-management matter for the tribunal.

The Employment Tribunal at Cardiff upheld Ms Buchanan’s sexual-discrimination claim after a liability hearing. At the subsequent remedies hearing, one lay member from the liability panel was unavailable because she had been double-booked. Another lay member, Mrs Mapstone, sat after being briefed and reading the liability judgment. The tribunal awarded compensation for injury to feelings and aggravated damages.

Freedom Choice Care Ltd appealed. Its substantive challenges to the awards were dismissed at a preliminary EAT hearing, but the EAT permitted a procedural challenge concerning the composition of the remedies tribunal to proceed. At the full hearing, the central issue was whether Mrs Mapstone had been validly substituted under regulation 9(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

1. The full hearing was stayed and adjourned. Regulation 9(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 permits substitution of a previously selected Employment Judge or other tribunal member only by the President, Vice-President or Regional Employment Judge. If none of those office-holders selected Mrs Mapstone, the remedies tribunal would have been invalidly constituted and its acts would have no legal effect.

2. The agreed statement that no reference had been made to the Regional Judge did not establish non-involvement in Mrs Mapstone’s appointment. Read sensibly, it referred only to the absence of any such reference during the remedies hearing and did not result from an enquiry into the tribunal office’s appointment process. The appellant, which had raised the point and obtained a direction to agree the precise circumstances of the appointment, had not made the obvious enquiry.

3. The Regional Employment Judge was directed to state, within 28 days, what role he had played in arranging the substitution and, if none, to explain the relevant arrangements. Information would instead be sought from the President or Vice-President if the Regional Employment Judge’s response made that necessary. The court required confirmation of involvement, not a reasoned justification for selecting a replacement. If the appointment was valid, any objection to proceeding with the reconstituted tribunal would be a matter of case management for that tribunal.

4. The court initially found the appellant’s conduct unreasonable within regulation 34A(1) of the Employment Appeal Tribunal Rules 1993. Wilkie J subsequently reviewed and varied the costs order. Because the respondent was represented without charge by a CAB, the scope of the EAT’s power to award the claimed wasted expense under regulation 34 was reserved for determination, after submissions, at the resumed substantive appeal.

• Employment Appeal Tribunal: This full hearing stayed the appeal for evidence about the appointment of the substituted lay member and reserved the costs issue.
• Employment Appeal Tribunal: At a preliminary hearing, the substantive challenges to the remedies awards were dismissed as unarguable, but the procedural challenge to the tribunal’s composition was permitted to proceed.
• Employment Tribunal at Cardiff: The claimant succeeded on liability for sexual discrimination. At the remedies hearing, the reconstituted tribunal awarded £10,000 for injury to feelings and £3,000 aggravated damages.