London United Busways Limited v Kamal Hamid Dankali

An employment tribunal ordinarily may presume that a representative acts with the party’s authority. It need not routinely require written authority or sworn evidence. Where unusual circumstances create a real concern about whether a representative has current instructions or sufficient authority, however, the tribunal must take such further investigative steps as are appropriate before deciding whether the proceedings should continue.

The response will depend on the circumstances. It may include requiring evidence of authority or communicating directly with the party. A tribunal is not obliged to investigate maintenance or champerty unless the issue is sufficiently raised or the material plainly calls for enquiry.

The claimant, a bus driver dismissed after long-term sickness absence, brought claims including unfair dismissal and breach of contract. His trade-union representative later reported that the claimant had been out of contact while overseas since February 2021.

At a preliminary hearing, the representative asserted an informal oral authority to continue the litigation in the claimant’s absence. The Employment Tribunal refused the respondent’s strike-out application under rule 37 and directed a merits hearing regardless of the claimant’s attendance. The respondent appealed, alleging both an uninvestigated maintenance or champerty issue and inadequate investigation of the representative’s asserted authority.

1. Appeal allowed. The Employment Tribunal’s refusal to strike out was quashed. The Employment Appeal Tribunal did not substitute a strike-out order; the matter was returned to the tribunal for any renewed or fresh application and associated case-management decisions.

2. The tribunal did not err by failing to investigate maintenance or champerty. A tribunal will generally not be criticised for failing to address an issue that has not been sufficiently raised, unless it is so apparent from the material that the tribunal must investigate it itself. The representative’s assertion of oral authority, and the respondent’s limited response, did not sufficiently put that specialist issue in play. The EAT therefore did not decide whether those doctrines apply to in-house trade-union litigation or advocacy in employment tribunals.

3. There is a general presumption that representatives act with the authority and instructions of the party concerned. Tribunals need not require written authority in every case, and the appropriate response to concerns about authority is ordinarily a matter of case-management judgment.

4. On the particular facts, however, the tribunal acted unfairly and outside the range of reasonable case-management responses. The claimant had been uncontactable for months, the representative had not answered an earlier direction seeking confirmation of instructions, and he first asserted an undocumented blanket authority at the strike-out hearing. Those circumstances raised serious unanswered questions. Before allowing the claim to proceed to a full hearing, the tribunal had to take further steps to investigate and satisfy itself about authority and representation.

5. The further steps might have included requiring written or other evidence, receiving evidence, or direct communication with the claimant. Once the position had been clarified, the tribunal could consider strike-out for lack of active pursuit, a stay, or another appropriate course under [2023] EAT 123.

• Employment Appeal Tribunal: Allowed the respondent’s appeal and quashed the Employment Tribunal’s refusal to strike out: [2023] EAT 123.
• Employment Tribunal: At a preliminary hearing on 6 October 2021, refused to strike out the claim and directed that it be relisted for a merits hearing whether or not the claimant attended.