Case spotlights nature of tribunal composition

A new case, Birring v Michael Rogers and Carolyn Moore t/a Charity Link UKEAT/0388/14/RN, has highlighted that a claim for trade union detriment (Section 146 Trade Union and Labour Relations Consolidation Act 1992) must be heard by a full tribunal panel, including lay members.

Since 2012, tribunal judges can hear unfair dismissal claims sitting alone instead of with two lay members — one from the employer and one from the worker side. The judge has discretion to rule that it would be “desirable” for a particular case to be heard by a full panel, for example because of a dispute over the facts. In practice, most unfair dismissal cases are now heard by a judge sitting alone.

Birring’s case involved claims for unfair dismissal and trade union detriment. The EAT said that the tribunal judge should have tried the whole case in one hearing with a full three-person panel.

In an unfair dismissal claim where a claimant is unrepresented, a tribunal judge should normally draw to the claimant’s attention the possibility of asking for a full panel hearing.

In other cases, a judge is not required to spell this out. A member who wants their claim heard by a full panel, including lay members, must make a request and put forward a strong argument, such as whether the member was engaged in trade union activities.

www.bailii.org/uk/cases/UKEAT/2015/0388_14_2503.html