Ringway Infrastructure Services Ltd v Conlon

An employment tribunal acts unlawfully if, without hearing from an affected party, it makes an indefinite stay which leaves a struck-out claim in limbo at the claimant’s option. Such an order is materially irregular and contrary to natural justice where the party had expected a listed hearing on reinstatement.

The tribunal must give intelligible reasons for an exceptional procedural order. It is irrational to stay proceedings pending a party’s explanation of how they can proceed without an interpreter when that party maintains that an interpreter is essential. The proper course is to determine the outstanding application through case management and appropriate directions.

The claimant’s employment claim had been struck out following an unless order concerning disclosure of alleged video and photographic evidence. He applied for reconsideration and reinstatement. A hearing was listed to consider that application.

On the day before the listed hearing, the Watford Employment Tribunal made an order on paper postponing the hearing indefinitely because an Irish Gaelic interpreter could not be obtained. It stayed proceedings pending the claimant advising how they could progress without an interpreter.

The employer appealed. At the appeal hearing, the Employment Appeal Tribunal rejected the claimant’s assertion that he required a Breton Gaelic interpreter, and found that he could participate in English without an interpreter. The central issue was whether the Employment Tribunal’s paper order was lawful.

1. Appeal allowed. The Employment Tribunal’s order was set aside and the matter was remitted for case management and determination of the claimant’s reconsideration application.

2. The order was made in breach of natural justice and was materially irregular. The employer had expected the listed hearing to address the claimant’s application to reinstate the claim, supported by detailed evidence and submissions. Before making, of its own motion, an exceptional order indefinitely staying the matter, the Employment Tribunal should have notified the employer of the proposed course and invited submissions.

3. The order gave no reasons for its exceptional character. Although it purported to state reasons, it merely described its effect. Its practical consequence was to revive a struck-out claim and leave it in indefinite limbo, controlled by the claimant’s choice of when, if at all, to seek progress.

4. The stay was also irrational. It required the claimant to advise how proceedings could continue without a Gaelic interpreter, although his position was that proceedings could not continue without one. The Employment Tribunal should instead hold a case management hearing, hear submissions on the appropriate next steps, and make directions for disposal of the application to reconsider the strike-out.

5. The EAT also refused the claimant’s request to adjourn the appeal for a Breton Gaelic interpreter. It rejected his evidence that Breton Gaelic was his first language and found that he had sufficient English to participate fairly, consistently with European Convention on Human Rights, Article 6.

• Employment Appeal Tribunal: appeal allowed; the Watford Employment Tribunal’s order of 1 February 2018 was set aside and the matter remitted for case management: [2019] UKEAT 0256_18_1502.

• Employment Tribunal, Watford: made an order on paper postponing the listed hearing and staying proceedings pending the claimant’s advice about progressing without a Gaelic interpreter.