Employment Tribunals Act 1996, section 4

Composition of tribunals

PART I Employment Tribunals

(1)An employment 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 member, or each member, chosen must belong to a panel of members of employment tribunals appointed in accordance with regulations under section 1(1).

(3)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 (4);

(b)may choose themselves (if eligible in accordance with regulations under section 1(1)).

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

(5)Where regulations under subsection (4) provide for a tribunal to be composed of a single member, the regulations must provide for that member to be an Employment Judge.

(6)Where regulations under subsection (4) provide for a tribunal to be composed of more than one member, the regulations—

(a)must provide for at least one of those members to be an Employment Judge,

(b)must make provision for determining how many (if any) of the other members are to be Employment Judges and how many (if any) are to be members who are not Employment Judges, and

(c)if the tribunal is to include one or more members who are not Employment Judges, may make provision for determining what qualifications (if any) that member or any of those members must have.

(7)A duty under subsection (4) or (6) 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 Employment Tribunals in accordance with any provision made under that subsection.

(8)The power under subsection (6)(c) may be exercised by giving the Senior President of Tribunals or the President of Employment Tribunals power to determine what qualifications are required in accordance with any provision made by the regulations.

(9)Where a 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 an Employment Judge.

(10)Where a person (other than an Employment Judge) is chosen as one of the members composing a tribunal but does not have a qualification required by virtue of subsection (6)(c), the tribunal may still proceed with that person as a member if the parties to the case agree.

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

(12)In this section—

Definitions used in section 4 1

employment

“employment” means employment under a contract of employment and “employed” shall be construed accordingly,

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

Cases considering section 4 20

Eyitene v Wirral Metropolitan Borough Council

[2014] EWCA Civ 1243 · 9 July 2014Interprets

Interprets the statutory composition requirement as meaning that the Tribunal’s decision and essential reasoning must be those of all members sitting, subject to recording a minority view where the members disagree (see paras [12]–[14]).

Bari v London Borough Of Waltham Forest

[2001] EWCA Civ 1623 · 29 October 2001Interprets

The judgment treated section 4(3) as identifying matters in respect of which a chairman may sit alone, subject to the statutory discretion and the considerations in section 4(5). (see [application 2000/3118]) The existence of a dispute of law making it desirable for the chairman to sit alone was a relevant consideration. The chairman was entitled to conclude that solo constitution was appropriate in the pension-law dispute. (see [application 2000/3118])

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

[2015] UKEAT 388_14_2503 · 25 March 2015Interprets

Section 4 governed tribunal composition. The court held that the detriment claim could not be heard by an Employment Judge alone, while the unfair-dismissal claim was subject to the statutory discretion concerning a full tribunal (see paras [3]-[6]; [18]-[22]). The court applied the full-tribunal composition in section 4(1) to the trade-union detriment claim. The Judge sitting alone lacked jurisdiction to decide it (see paras [3]; [5]). The provision established the default single-Judge composition for proceedings specified in section 4(3). The court applied it subject to the section 4(5) discretion in a mixed-jurisdiction case (see paras [3]-[4]; [18]). Unfair-dismissal proceedings were within the listed proceedings ordinarily heard by a Judge alone. The trade-union detriment complaint was not, creating the mixed-jurisdiction issue that required active consideration of section 4(5) (see paras [4]-[6]; [17]-[21]). The court noted that written party consent could permit proceedings to be heard by a Judge alone. No such consent supplied jurisdiction in this case (see para [6]). In combined jurisdictions, the discretion to order a full tribunal must be actively and expressly considered. A split hearing needs good reason, having regard to factual disputes, legal issues, party views, linked proceedings and the overriding objective (see paras [18]-[22]). The concurrent trade-union detriment proceedings were an express statutory factor supporting consideration of a full tribunal for the linked unfair-dismissal claim (see paras [6]; [18]).

2 more judgments, and what each says about section 4, are in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F11S. 4 substituted (7.11.2023) by Judicial Review and Courts Act 2022 (c. 35), ss. 35(2), 51(4) (with s. 36); S.I. 2023/1194, reg. 2(b) (with reg. 3)