Employment Tribunals Act 1996, section 28

Composition of Appeal Tribunal

Part II The Employment Appeal Tribunal

(1)The Appeal Tribunal is, for the purpose of deciding any given matter, to be composed of a member or members chosen by the Senior President of Tribunals.

(2)The Senior President of Tribunals (or any person to whom the function under subsection (1) is delegated)—

(a)must act in accordance with regulations under subsection (3);

(b)may choose themselves (if otherwise eligible to sit).

(3)The Lord Chancellor must by regulations make provision, in relation to every matter that may fall to be decided by the Appeal Tribunal, for determining the number of members who are to compose the Tribunal.

(4)Where regulations under subsection (3) provide for the Appeal Tribunal to be composed of a single member, the regulations must provide for that member to be a judge.

(5)Where regulations under subsection (3) provide for the Appeal Tribunal to be composed of more than one member, the regulations—

(a)must provide for at least one of those members to be a judge,

(b)must make provision for determining how many (if any) of the other members are to be judges and how many (if any) are to be appointed members, and

(c)if the Tribunal is to be composed of persons who include one or more appointed members, may make provision for determining what qualifications (if any) that member or any of those members must have.

(6)A duty under subsection (3) or (5) to provide for the determination of anything may be discharged by providing for the thing to be determined by the Senior President of Tribunals or the President of the Appeal Tribunal in accordance with any provision made under that subsection.

(7)The power under subsection (5)(c) may be exercised by giving the Senior President of Tribunals or the President of the Appeal Tribunal power to determine what qualifications are required in accordance with any provision made by the regulations.

(8)Where the Appeal Tribunal is to be composed of more than one member, the Tribunal may proceed in the absence of one or more of the members chosen to compose it if—

(a)the parties to the case agree, and

(b)at least one of the members who is present is a judge.

(9)Where a person (other than a judge) is chosen as one of the members composing the Appeal Tribunal but does not have a qualification required by virtue of subsection (5)(c), the Tribunal may still proceed with that person as a member if the parties to the case agree.

(10)Before making regulations under this section, the Lord Chancellor must consult the Senior President of Tribunals.

(11) In this section, “qualification” includes experience. F306]

Definitions used in section 28 2

the Appeal Tribunal

“the Appeal Tribunal” means the Employment Appeal Tribunal,

Defined in s.42(1) · see it in the full Act
appointed member

“appointed member” shall be construed in accordance with section 22(1)(c),

Defined in s.42(1) · see it in the full Act

Cases considering section 28 9

de Haney v Mind & Anor

[2003] EWCA Civ 1637 · 27 October 2003Interprets

Section 28(2) establishes the ordinary EAT constitution with equal numbers of employer and worker representatives. The court treated that equality as the general statutory rule and as a safeguard of confidence in the administration of justice. (see paras [1], [16], [28]–[29]) Section 28(3) permits a reduced EAT constitution only with the parties’ consent. The court interpreted that consent as requiring informed knowledge of the ordinary equality rule and of whether the sitting lay member represents employers or workers. Without informed consent, the EAT lacks jurisdiction. (see paras [16], [24], [29])

Lawal v Northern Spirit Ltd

[2002] EWCA Civ 1218 · 30 October 2002Defines

The dissent relied on section 28(2) to identify the tribunal’s judge-and-appointed-member composition and the equal representation of employer and worker interests. This supported its view that the lay members formed a majority. (see Employment Appeal Tribunal) The dissent noted that, with consent, proceedings may be heard by a judge and one or three appointed members. This provision formed part of the statutory composition described. (see Employment Appeal Tribunal)

Lawal v Northern Spirit Ltd

[2002] EWCA Civ 327 · 9 August 2002Defines

Section 28(2) provides for appeals to be heard by a judge and two or four appointed members, with equal representation of employer and worker interests. The court treated the statutory lay-majority structure as relevant to the bias analysis (see Employment Appeal Tribunal; Conclusions). Section 28(3) permits a hearing by a judge and one or three appointed members with the parties’ consent. It was cited as part of the statutory scheme governing tribunal composition (see Employment Appeal Tribunal).

What each judgment says about section 28 is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F306S. 28 substituted (7.11.2023) by Judicial Review and Courts Act 2022 (c. 35), ss. 35(3), 51(4) (with s. 36); S.I. 2023/1194, reg. 2(b) (with reg. 3)