Appeal No. EATS/0048/02

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 19 March 2003

 
Before
THE HONOURABLE LORD JOHNSTON
MISS J A GASKELL
MR R P THOMSON

 

JAMES DRESSEL	APPELLANT

 

 
PARTNERSHIP HOUSING LTD	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr F H Lefevre, Solicitor
Of-
Quantum Claims
Employment Division
70 Carden Place
Queen’s Cross
ABERDEEN   AB10 1UP

 
 	
For the Respondents	Mr A Kemp, Solicitor
Of-
Messrs Burnside Kemp Fraser
Solicitors
48 Queens Road
ABERDEEN   AB15 4YE

 

 

LORD JOHNSTON:
 
1.	At the outset of this appeal, Mr Lefevre, appearing for the appellant, raised the issue, focussed by subsection (5) of section 4 of the Employment Tribunals Act 1996, with regard to the fact this case had been heard by a Chairman sitting alone, where at least one, if not more, of the subsections of subsection (5) plainly applied.
 
2.	The subsection is in the following terms:-
 
“(5)	Proceedings specified in subsection (3) shall be heard in accordance with subsection (1) if a person who, in accordance with regulations made under s.1(1), may be the chairman of an [employment tribunal], having regard to –
(a)	(a)                whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with subsection (1).
(b)	(b)                whether there is a likelihood of an issue of law arising which would make it desirable for the proceedings to be heard in accordance with subsection (2).
(c)	(c)                any views of any of the parties as to whether or not the proceedings ought to be heard in accordance with either of those subsections, and
(d)	(d)                whether there are other proceedings which might be heard concurrently but which are not proceedings specified in subsection (3),
- decides at any stage of the proceedings that the proceedings are to be heard in accordance with subsection (1).”
 
3.	This Tribunal has already determined the matter in principle in the case of Harman v Town and Country Veterinary Group EAT/71/01, but Mr Lefevre referred us to a subsequent case to that referred to by us in that case, namely, Post Office v Howell [2000] IRLR 224.
 
4.	Mr Lefevre submitted that the substance of the matter was that where, on the face of it, at least one of the provisions of subsection (5) appeared to apply, there was a duty on the part of the Chairman to exercise a discretion and so to intimate to the parties.  This, he submitted, was the effect of the authorities in this particular case.  As a matter of fact, there was no indication that any such discretion had ever been exercised.  At the original intimation of hearing it was stated that the Chairman would be sitting alone, although a fresh notice did not so state.
 
5.	Mr Kemp, appearing for the respondents, submitted that, properly understood, the discretion that was plainly vested in the Chairman under subsection (5) could be exercised at any time and must have been exercised in this case when the original intimation was made.  He said, in any event, by proceeding with the case, the appellant had either tacitly accepted the position or waived the right to object.
 
6.	With regard to these last points, we do not consider that waiver or tacit acceptance can apply in respect of a duty that is mandatorily imposed upon the Chairman in relation to the exercise of a discretion.
 
7.	There is more force in Mr Kemp’s first point but we consider the word “proceedings” means the actual hearing and, accordingly, it is incumbent, in our view, that a Chairman intending to sit alone where provisions of subsection (5) may apply, to raise the matter with the parties at the beginning of the hearing and accordingly exercise his discretion if he continues to sit alone.  We would respectfully draw this duty to the attention of Chairmen so that the present problem can be avoided in the future.
 
8.	In these circumstances, in this case, since there is no indication of any discretion whatever being exercised, we must follow the route that we took in Harman, quash the decision and remit the matter back for a fresh hearing before a freshly constituted Tribunal in the expectation that the Chairman of that Tribunal, if intending to sit alone, will exercise his or her discretion and give reasons therefore at the start of the proceedings.