The law allows judges to sit alone in some cases but not in others, so what happens in claims with a combined jurisdiction? In Birring v Rogers and Moore t/a Charity Link, the Employment Appeal Tribunal (EAT) held that judges should actively consider with the parties concerned whether to exercise their discretion to sit with members to hear claims one of which requires a full tribunal and one of which does not.
Ms Birring brought a claim for unfair dismissal and a claim that she had been subject to a detriment because of her trade union activity. This was separate from, although factually related to, her claim that she had been unfairly dismissed. An employment judge, sitting on his own, dismissed both claims.
Ms Birring appealed on the basis that the judge should not have heard her claim for detriment because of trade union activity on his own under section 4 of the Employment Tribunals Act 1996.
Section 4 of the Act provides that a judge can hear a claim of unfair dismissal on their own unless they exercise their discretion to hear the proceedings with lay members. However, they must sit with lay members to hear a claim in respect of a detriment for trade union activities, unless the parties agree otherwise.
Section 4(3) of the Act sets out the proceedings in which an employment judge may sit on their own. This includes claims for unfair dismissal but not claims for detriment because of trade union activity.
Section 4(5) allows employment judges to exercise their discretion as to when to hear cases on their own and includes circumstances when “there are other proceedings which might be heard concurrently” but which are not included in section 4(3).
The EAT said that it was clear that the judge had not considered at any stage whether he should exercise his discretion under section 4(5). Indeed, he had not even realised there was an issue he should be concerned about in terms of the composition of the tribunal and had therefore completely overlooked whether he could deal with both claims alone.
In allowing the appeal, the EAT held that in cases with a combined jurisdiction, one of which requires a full tribunal and one of which does not, judges should actively consider with the parties whether to exercise their discretion to sit with members to hear both claims.
In this case the judge had had a discretion but failed to exercise it. Had he done so, it is highly likely that he would have determined that the claims should be heard together. The EAT therefore held that the appeal would be allowed and exercised its power to order that the matters of unfair dismissal and detriment be remitted to a full tribunal for determination.