ET’s Chairman Sitting Alone

Post Office v Howell (EAT TLR 11 November)

Before the chairman of an employment tribunal may sit alone in proceedings identified by s4(3) of the Employment Tribunals Act 1996 he must consider exercising his power under s4(5) to decide that the proceedings, which otherwise would be heard by the chairman sitting alone, should be heard by a full tribunal. Although the requirement was mandatory, failure to comply with it did not necessarily result in a lack, or loss of, jurisdiction resulting in a nullity. Such a failure could be treated as an irregularity. Although the decision in Sogbetun v Hackney LBC [1998] ICR 1264 used the expressions ‘jurisdiction’ and ‘nullity’ it may be that the tribunal was not intending to use those expressions in their technical sense and the case taken as a whole was not authority for the proposition that a failure by a chairman to consider whether he should sit alone went to jurisdiction and rendered his decision a nullity. However in the present case the likely contribution of employment tribunal members in the determination of the factual disputes and construction of the collective agreement in question were such that, as the chairman had failed to perform his mandatory obligation, the appeal should be allowed and the case remitted for hearing by a full tribunal.