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Composition of tribunals
A full tribunal panel is made up of a judge (previously referred to as a chairman) and two lay members. The judge is legally qualified and has at least seven years’ experience; s/he is appointed by the Lord Chancellor or the Lord President in Scotland.
The lay members are people with industrial experience who are appointed to panels by the Secretary of State for Business, Innovation and Skills after consultation with employer and employee representative bodies such as the Confederation of British Industry and the TUC. There is an “employer” panel and an “employee” panel and in each tribunal one lay member is chosen from each panel. Once they are appointed they must act independently, although they can be expected to draw on their experience and perspective.
However, since 6 April 2012 unfair dismissal claims are no longer heard by a full tribunal panel and will usually be heard by an employment judge sitting alone. The parties can request that lay members sit on the panel with the judge, but the judge is not bound to accept that request.
The case of McCafferty v Royal Mail Group was heard before the rules on the composition of tribunal panels changed. In the tribunal, the two lay members overruled the judge and found for the employee. However, the employer appealed to the Employment Appeal Tribunal (EAT).
In dismissing the appeal, Lady Smith of the EAT said: “This case is an example of the lay members of an employment tribunal reaching a different conclusion on the facts of the case — drawing in part on their valuable ‘common sense’ and knowledge of what any employee could be expected to know — from that of the employment judge.”
Lady Smith said that had this claim been one to which the new Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 applied, it seems likely that it would have been heard and determined by an employment judge sitting alone, in which case the result would evidently have been different.
Unions have considered the move away from the “industrial jury” as a step in the wrong direction and Lady Smith seems to agree. She said that this underlines the need to give careful consideration to any views expressed by parties as to whether proceedings should be heard by an employment judge plus lay members under the provisions of section 4(5) of the Employment Tribunals Act 1996, which are still in force.
McCafferty v Royal Mail Group UKEATS/0002/12/BI
Even where lay members are usually expected to sit with a judge, their presence is not mandatory. That is to say, if a lay member cannot attend, the judge can sit with just one lay member. However, both parties to the claim would need to agree to this. In such a situation, it is important to check from which panel the lay member was chosen. This is something that, in order to avoid any appearance of bias, the parties are entitled to know.
Similarly, if a member of the panel becomes unavailable part way through a hearing, the parties are entitled to know whether that member was drawn from the employers’ or employees’ panel (Rabahallah v BT plc EAT 0382/04 ([2005] IRLR 184)).
Also, if the judge or either lay member has a personal or financial interest in the case, s/he must declare that interest and should not hear that case.
Case management discussions and pre-hearing reviews (soon likely to be replaced by a merged preliminary hearing — see Chapter 6) are heard by a judge sitting alone. As well as hearing unfair dismissal claims alone, a judge will also hear certain claims, such as for unpaid holiday, unlawful deduction of wages and applications for a written statement of particulars. Although, if there is likely to be a dispute over the facts of the case in such a claim, the judge is likely to decide that the hearing should be in front of a full tribunal.