Birring v Rogers & Moore (t/a Charity Link) (Jurisdictional Points)

Where proceedings combine an unfair-dismissal claim, ordinarily heard by an Employment Judge alone, with a claim that requires lay members, the Judge must actively and expressly consider whether to exercise the statutory discretion for the claims to be heard together by a full tribunal. A split hearing requires good reason, particularly where the claims are linked and a single hearing promotes the overriding objective.

A Judge sitting alone has no jurisdiction to determine a trade-union-activity detriment complaint unless the statutory requirements for that composition are met. A decision on that complaint must therefore be set aside and reheard by a properly constituted tribunal.

The Claimant brought claims for unfair dismissal and for detriment because of trade union activity. The latter complaint was made under section 146 of the Trade Union Labour Relations (Consolidation) Act 1992. Employment Judge Hardwick, sitting alone, dismissed both claims at Reading.

The Claimant appealed on jurisdictional grounds. The trade-union detriment claim could not be heard by an Employment Judge sitting alone without the necessary consent. The further issue was whether, because the claims were linked, the Judge should have considered using the discretion in section 4(5) of the Employment Tribunals Act 1996 to hear the unfair-dismissal claim with lay members as well.

1. Appeal allowed. The Employment Judge sitting alone had no jurisdiction to determine the complaint of detriment for trade union activity. That complaint was not among the proceedings listed in section 4(3) of the Employment Tribunals Act 1996, and there was no relevant consent to a Judge sitting alone. The tribunal was therefore improperly constituted and its decision on that complaint had to be set aside.

2. The principles in Gladwell remained correct for a stand-alone unfair-dismissal claim or another claim within section 4(3). The statutory default is a hearing by an Employment Judge alone, the discretion need not usually be exercised by inviting submissions, and it must be kept under review.

3. Those principles did not resolve a mixed-jurisdiction case. Where one linked claim must be heard by a full tribunal and another would ordinarily be heard by a Judge alone, the Judge is obliged actively and expressly to consider the section 4(5) discretion. The possibility of separate hearings requires good reason. Relevant considerations include factual disputes, the views of the parties, the concurrent non-section-4(3) proceedings, proportionality, equality of arms, delay and expense.

4. The Judge had not considered the discretion at all. It was highly likely that a properly directed Judge would have ordered a combined hearing before lay members. The unfair-dismissal and detriment claims were remitted to a fresh three-member tribunal. The direction could be varied only by a judicial decision that there was good reason to separate the pure unfair-dismissal claim.

5. Under Rule 34A(2A), the Respondent was ordered to pay the Claimant the full £1,600 appeal fees.

• Employment Appeal Tribunal: Allowed the appeal, set aside the determinations of unfair dismissal and trade-union detriment, and remitted them to a fresh three-member tribunal.
• Employment Tribunal, Reading: Employment Judge Hardwick, sitting alone, dismissed the claims in reasons sent on 10 June 2014.