Maunders v Wellwise Group (Wellwise Oilfield Services Ltd) & Ors (Practice and Procedure)

An employment tribunal commits a material procedural irregularity where it determines an issue capable of materially affecting an absent party without giving that party a real and effective opportunity to know and meet the case, including by calling evidence, cross-examining and making submissions. Where the omitted participation affects central disputed facts, the proper remedy is remission for a rehearing.

In a discrimination case turning on contested facts, a tribunal should ordinarily sit with lay members unless a compelling reason points otherwise. Remission to the same employment judge may be appropriate where there is no evidence of prejudgment and efficiency favours retaining judicial familiarity.

The claimant alleged that he had been refused access to work at an oil refinery because his name appeared on a security database which was a prohibited list under the Employment Relations Act 1999 (Blacklists) Regulations 2010.

A Leeds Employment Tribunal had listed a preliminary hearing to consider strike-out and case management. With the agreement of the claimant and the first three respondents who attended, it instead determined whether the database was a prohibited list. The fourth respondent did not attend because it had not anticipated that factual issue would be determined. The tribunal found that the claimant had not established the requisite discriminatory purpose.

The appeal raised whether the fourth respondent had been denied a fair opportunity to participate, and the appropriate scope and composition of any remission.

1. Appeal allowed in part. The fourth respondent had suffered a material procedural irregularity. The hearing notice identified a strike-out application, not a determination of the central factual issue whether the database was a prohibited list. That issue could materially affect the fourth respondent’s position and was a necessary precursor to liability.

2. Procedural fairness required that respondent to have a real and effective opportunity to know the case, call evidence, cross-examine witnesses and make submissions. Its absence meant that there had been no effective determination of the relevant facts as between it and the claimant. The fact that it did not seek a review was immaterial because the decision was favourable to it, although factual findings might nevertheless prejudice it on the appeal.

3. The Appeal Tribunal could not determine the substantive challenge in a vacuum. The fourth respondent might adduce evidence bearing on the contested facts, and its involvement would also permit the other respondents to test that evidence. The case was therefore remitted for a rehearing of the issue concerning the lists, rather than merely a confined reconsideration concerning the fourth respondent.

4. Applying the guidance in Sogbetun v Hackney [1998] IRLR 676, the remitted fact-finding exercise should be heard by a panel of three. Important disputed facts lay at the centre of a discrimination case, and no compelling reason justified a judge sitting alone.

5. The same employment judge should preside, if practicable. Applying Sinclair Roche & Temperley v Heard [2004] IRLR 763, apparent prejudgment had to be balanced against the professionalism expected of judges. There was no indication that the judge would fail to reconsider the matter fairly, and retaining that judge promoted efficiency. The earlier tribunal decision remained standing as between the claimant and the first three respondents.

• Employment Appeal Tribunal: Allowed the appeal to the extent required to remedy the procedural unfairness to the fourth respondent. Remitted the issue concerning the alleged prohibited list to a full tribunal, ordinarily chaired by the same employment judge.
• Employment Tribunal, Leeds: At a preliminary hearing, determined that the security database had not been shown to be a prohibited list within the Employment Relations Act 1999 (Blacklists) Regulations 2010. No citation was stated in the judgment.