Riley v Secretary of State for Justice

Where a substantive decision has been reached by a tribunal of three, a later costs application relating in material part to the conduct of that hearing must ordinarily be determined by a tribunal of three. An Employment Judge cannot derive an implied power to sit alone merely from the similarity between costs and strike-out applications, or from the overriding objective.

If a power to sit alone exists, the Judge must actively consider whether to exercise it. Relevant considerations include the extent to which the application concerns matters witnessed by the full tribunal and whether the different perspectives of the lay members may assist. Silence by the parties does not justify assuming that the Judge should sit alone.

The claimant’s discrimination and victimisation claims against the Secretary of State and other respondents were dismissed. The substantive claims were determined by a tribunal of three. A subsequent application for costs, relating partly to the conduct of the hearing before that panel, was determined by the Employment Judge sitting alone.

The claimant appealed on the grounds that the costs tribunal was improperly constituted under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and that the Judge had failed to consider whether to sit alone. The central issue was whether a Judge had jurisdiction to determine such a costs application alone.

1. Appeal allowed. The Employment Judge had no jurisdiction to determine the costs application alone. Section 4 of the Employment Tribunals Act 1996 establishes the relevant tribunal composition, subject to express provision in procedure regulations permitting an Employment Judge to act alone. Unless the Rules make such provision for the particular matter, the tribunal must sit as required by section 4. [16]-[17]
2. The costs provisions in Rules 74 to 84 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 refer throughout to the Tribunal, not to the Employment Judge. Rule 55 expressly provides for an Employment Judge alone at preliminary hearings, including strike-out applications under Rule 37. That express provision could not be used to imply an equivalent power for costs applications. The overriding objective could assist only in interpreting or exercising an existing power; it could not create one. [18]-[21]
3. A costs decision is a judgment, not a case-management order. Rule 1(3) defines a judgment as a decision finally determining liability, remedy or costs, whereas a case-management order excludes the determination of an issue that would be the subject of a judgment. The Presidential Guidance on case management did not alter that conclusion. [22]-[24]
4. Alternatively, if a discretion to sit alone existed, it had to be actively considered. The Judge could not infer consent from the parties’ silence. The relevant matters included whether the costs application concerned conduct witnessed by the full panel and whether the lay members’ perspectives were relevant to conduct, credibility and means. [26]-[28]
5. The matter was remitted to the same tribunal, constituted as three, for determination of the costs application. [29]

• Employment Appeal Tribunal: Appeal allowed. The costs decision made by an Employment Judge sitting alone was set aside and the matter was remitted to the same tribunal constituted as three.
• Employment Tribunal: The substantive claims were dismissed by a tribunal of three. A subsequent costs application was determined by the Employment Judge sitting alone.