Case No. A1/2003/0887 
Neutral Citation Number: [2003] EWCA Civ 1637
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge McMullen QC)
Royal Courts of Justice 
Strand 
London, WC2 

Date: Monday, 27th October 2003
 
B E F O R E:

LORD JUSTICE PETER GIBSON 
LORD JUSTICE WALLER 
LORD JUSTICE CARNWATH 
 
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MISS J DE HANEY
Appellant/Appellant
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(1) BRENT MIND 
(2) MS L LANG 
Respondents/Respondents 
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MR PAUL DIAMOND (instructed by Coningsbys, Croydon, Surrey  CR9 1XE) appeared on behalf of the Appellant.
MS HELEN GOWER (instructed by Sinclair Taylor & Martin, London W10 5XL) appeared on behalf of the Respondents.
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J U D G M E N T 

1.	LORD JUSTICE PETER GIBSON:  The constitution of the Employment Appeal Tribunal ("the EAT") to hear an appeal from the decision of an Employment Tribunal ("the Tribunal") is governed by section 28(2) to (4) of the Employment Tribunals Act 1996 ("the 1996 Act").  That provides: 
"(2) Subject to subsections (3) to (5), proceedings before the Appeal Tribunal shall be heard by a judge and either two or four appointed members, so that in either case there is an equal number- 
(a) 	of persons whose knowledge or experience of industrial relations is as representatives of employers, and
(b)	of persons whose knowledge or experience of industrial relations is as representatives of workers.
(3) With the consent of the parties, proceedings before the Appeal Tribunal may be heard by a judge and one appointed member or by a judge and three appointed members.
(4) Proceedings on an appeal on a question arising from any decision of, or arising in any proceedings before, an industrial tribunal consisting of the person mentioned in section 4(1)(a) alone shall be heard by a judge alone unless a judge directs that the proceedings shall be heard in accordance with subsections (2) and (3)."
Subsection (5) has been repealed.
2.	The primary point raised by this appeal is one which was described by Mummery LJ, with his great experience of the practice of the EAT, on the application for permission to appeal as novel.  It is this.  When an appellant employee (i) appeals to the EAT from the decision of a Tribunal, (ii) appears in person at the full hearing of the appeal, (iii) consents at the start of the hearing to the appeal being heard by only a judge and one lay member of the EAT, but (iv (on her account of the facts) shortly thereafter learns that the lay member is an employers' representative, and (v) asks the EAT to discharge itself from continuing, so constituted, to hear the appeal, does the EAT err in law in refusing that request and in continuing with the hearing? 
3.	The appellant, Jasmine De Haney, was employed by the first respondent, Brent Mind, as a Housing Services Manager from 3rd October 2000 until dismissed on 31st July 2001.  Prior to her dismissal she lodged an originating application complaining of race discrimination and victimisation as a result of disclosures under the Public Interest Disclosure Act 1998.  She named Brent Mind and its acting Director, Miss Lang, as respondents.  They resisted her complaint.  After a seven- day hearing, at which she was represented by counsel, her complaints were rejected by a Tribunal sitting at London Central.  She appealed to the EAT.  At the preliminary hearing, at which Miss De Haney appeared in person, the EAT dismissed her appeal so far as it related to Miss Lang but allowed the appeal to go ahead against Brent Mind on a single ground which related to a single claim of public interest disclosure made on 19th February 2001.  She had alleged that it was because of that disclosure that she was dismissed.  The full hearing of her appeal on that ground was expedited at her request.
4.	At the full hearing of her appeal on 10th April 2003 she again appeared in person.  Ms Gower of counsel appeared for Brent Mind.  Miss De Haney arrived late, having warned the court in advance.  Before going into court she was asked by a clerk to the EAT whether she agreed to the EAT consisting only of two members.  Ms Gower was also asked the same question.  Both agreed.  
5.	What happened was explained by His Honour Judge McMullen QC in this way: 
"3.  This morning the panel originally appointed to hear this case included a member who decided there was a conflict of interest because of that member's connection to Mind in a different part of the country.  Thus having consulted the judge in her case it was decided that she would not sit upon this case.  In her place Mr Hodgkins was due to hear the case he being appointed by the Secretary of State under Royal Warrant as a person with experience of Industrial Relations representing employers as was the previous member." 
6.	I pause to interpose the comment that the explanation in that paragraph as to why the EAT was constituted as a panel of two is, with respect, incomplete.  It appears that there was a female member of the EAT who was going to sit on the panel but who decided that she would not sit because of the conflict of interest.  She was a representative of the employers.  Mr Hodgkins was also an employers' representative, and he sat in her place.  But what one might have expected to be explained was why a member representing employees was not sitting.  There is no such explanation.  
7.	The judge continued: 
"4. The Applicant arrived late for the hearing scheduled at 11.45 am.  But as it happened no inconvenience was caused since a Tribunal of two is presently available, that is myself and Mr Hodgkins. Before the case was called on we caused an enquiry to be made of Counsel, Ms Gower and the Applicant as to whether they would consent to this case being heard by two persons.  That is permitted under Section 28(3) of the Employment Rights Act 1996.  Consent is required although unlike the Employment Tribunal's parallel provision it does not need to be in writing.  There was no objection.  
5. At the calling on of the case in open tribunal at about 12.40 both the Applicant and Ms Gower confirmed expressly in answer to my question that they had no objection to the case being heard as constituted. The hearing began.  A form was prepared in standard form which we use in this Tribunal with the Applicant and Ms Gower to sign.  At 2.05 pm the Applicant has indicated that she will not sign the form.  She points out she is without legal representation and fears she is committing herself irrevocably to something which will disadvantage her.  The disadvantage she says is having the case heard without a person experienced in Industrial Relations as a representative of workers.  
6.  Thus she applies today for this Tribunal to discharge itself in the event that there is no third person.  Ms Gower submits that the case is already under way.  The consent already has been freely given by both parties and considerable effort has been put in by the Respondent into making the case ready for today.  That much can be said of the Applicant's case too, who has done considerable preparation.  The Applicant's other hearing which overshadows this hearing has now been brought forward to 16 April.  There is no question therefore of a hearing of the Applicant's appeal by a three- person Tribunal before that date.  That however is a secondary consideration. The Applicant gave her consent to the hearing.  The hearing is on foot.  It is not in the interest of the administration of justice that a party may decide part- way through a hearing that she is dissatisfied with its constitution.  This hearing is being conducted under section 28(3) of the Employment Tribunals Act 1996 by the consent of both parties constituted as a Judge and one member.  We will continue as constituted." 
The EAT then proceeded to consider the substance of Miss De Haney's appeal, which it rejected.  
8.	Miss De Haney applied to this court for permission to appeal.  Mummery LJ, considering the application on paper, gave permission.  He said that he was doubtful about the prospects of the appeal succeeding, but he expressed his concern that an unrepresented party had had her case heard by an EAT of two members only, although initially with her consent.  
9.	Because it was not apparent from the judgment of the EAT or the skeleton argument of Mr Diamond for Miss De Haney or of Ms Gower for Brent Mind, we endeavoured to obtain from the parties in advance of this hearing an agreed statement of what information had been provided by the EAT to the parties prior to their giving consent to the appeal being heard by only two members.  Statements were provided by each side.  
10.	Miss De Haney said that, on arriving at the EAT at 11.30 a.m., she was told by an usher that there was a possibility of a hearing with two panel members.  She asked if it were possible to have three members.  She was told that it could not be guaranteed that her case could be heard.  She said that she really needed her case to be heard that day.  When the EAT hearing started the judge asked if either party minded a two- member panel hearing.  She did not object, feeling desperate to have her case heard.  At 2.00 p.m. a clerk presented a written consent form for her to sign.  She asked who was on the panel.  The clerk went away and returned to tell her that it was a CBI representative.  She refused to sign.  She then asked the EAT to discharge itself, but that was refused.
11.	Ms Gower's note was prepared from her own and her instructing solicitor's recollection, and not from any note made at the time.  She says that at about 11.30 a.m. she was told by a clerk that Miss De Haney had arrived and that an EAT panel of two was available.  She gave Brent Mind's consent to the hearing with the EAT so constituted.  She does not know what was said to Miss De Haney by the clerk.  When the hearing commenced the judge referred to the fact that he was a member of the EAT panel at the preliminary hearing of the appeal.  He introduced the main member, Mr Hodgkins, to Miss De Haney.  He explained that a panel of three was not available, but a panel of two was, and that the judge understood that both parties agreed to a two- member panel.  Ms Gower confirmed that Brent Mind consented.  Miss De Haney stated that she agreed.  Ms Gower and her instructing solicitor do not recall whether or not there was an express reference to section 28(2), but said that the consent of both parties would be needed for the appeal to proceed with one lay member.  They could not definitely confirm whether the information that the two- member panel was constituted with a representative of employers was provided by the clerk to the EAT or in open court.  Miss De Haney first objected to the constitution of the EAT after lunch, but did not say that she had only just discovered that the lay member was an employers' representative.  
12.	Because there were some uncertainties left by the two rival statements, the judge was invited to comment on the parties' statements.  He did so in two e- mails, the first being written before he had seen Miss De Haney's statement.  By the first he returned to the matter of how the EAT was constituted as a two- member panel.  He referred to the initial conflict felt by one member and said that, as Miss De Haney was not on time, the panel was redistributed or went away.  He referred to a Mr Jacques as shown as sitting (presumably that was in the court log), and I note that Mr Jacques' name appears in the heading to the judgment of the EAT; but the judge said that that was an error.  That again sheds little light on why there was no employees' representative present.  
13.	The judge said he could not recall whether or not he cited section 28(2).  He made a number of comments in the first e- mail, to which I will refer a little later, but he did say that he was satisfied from exchanges with Miss De Haney in open court that she knew the status of Mr Hodgkins.  In the first e- mail he said that he agreed with what Ms Gower had put in her statement.  In the second e- mail he said that he did not disagree with most of Miss De Haney's account.  He made some comments on whether or not Miss De Haney knew of Mr Hodgkins' status.  He expressed himself as sure that he did mention that status when introduced to him in open court before Miss De Haney opened.  I will return to what he says a little later.
14.	The first point that is taken by Mr Diamond is that the consent envisaged by section 28(3) is informed consent.  He submits that Miss De Haney should have been told before she agreed to the two- member panel that Mr Hodgkins was an employers' representative, with the result that in that two- member panel there was no employees' representative hearing the case.  He drew our attention to the history of section 28(2) and a somewhat similar provision in section 4 of the 1996 Act for the constitution of the Tribunal when hearing cases.  He pointed out that those sections implemented the recommendation of the Donovan Commission, the Royal Commission in 1968 on Trade Unions and Employers' Associations (Comnd 3623).  He says that the requirement of the consent of the parties to a panel of members in which there is equality between employers' and employees' representatives is important and designed to secure confidence in the administration of justice in a sensitive area of labour relations.
15.	Ms Gower accepted that it may be necessary to consider what information should be provided to an unrepresented party in order for that party to consent within the meaning of section 28(3).  She argued that the information provided should be enough to ensure that an unrepresented party is not at a disadvantage by comparison with the other party.  The unrepresented party, she said, should know what is the normal constitution of the EAT, that is to say three members, and that the unrepresented party has an option whether or not to consent to a panel of two members.  She said that Miss De Haney knew from her previous attendance at the preliminary hearing of the appeal that a normal constitution was three members.  Further, she said that Miss De Haney was aware that her consent was needed for a two- member panel to hear the appeal.  
16.	I agree that the unrepresented party must know those two matters, but, in my judgment, they are not the only matters that the parties should know.  It must be borne in mind that the general rule is laid down in section 28(2), that is to say that there must be equality in number as between the lay member or members who are representatives of employers and the lay member or members who are representatives of employees, that is to say a rule of equality.  The provisions of section 28(3) operate as an exception to that general rule, and, in my view, should therefore be construed restrictively.  It seems to me that the parties must know that Parliament imposed the rule of equality so that the employers' representative or representatives should be balanced by the employees' representative or representatives, unless the consent of the parties was obtained.  Further, in my judgment, the knowledge of a party giving consent to a panel of two must include information as to whether that panel consists of the judge and the employers' representative or the employees' representative.  
17.	In the present case, I would accept that Miss De Haney knew that the normal constitution was a three- member panel and that her consent was needed to a two- member constitution.  It would appear from her enquiry at 2 p.m. as to who was on the panel that she knew that there were employees' representatives and employers' representatives who were members of the EAT.  It may be that the correct inference is that she was aware that there ought to have been an employees' representative to match an employers' representative once she knew the status of the lay member who was present.  In the judgment of the EAT it is made clear that she made a point of telling the EAT in the afternoon session that she was disadvantaged by having the case heard without an employees' representative hearing the case.  
18.	The crucial question to my mind is whether Miss De Haney knew that in consenting to a two- member panel she was aware that she was consenting to an EAT with no employees' representative present, and that question turns on the facts appearing from the judgment, the parties' respective statements and the judge's comments.  This court finds itself placed in the invidious position of having to decide what is a question of fact without agreement or oral evidence and where the judge has expressed a strong view.  However, that view seems to me not one based on  direct recollection of actual words spoken but of inference.  Ms Gower frankly accepted that her statement did not contradict the statement of Miss De Haney, but Ms Gower relies on what the judge has said in his two e- mails.  
19.	In the first of his e- mails the judge said that, whilst he cannot recall whether or not he cited section 28(2), he must have had it open, since he cited almost verbatim from it in the last two lines of paragraph 3.  But, with respect to the judge, to my mind it does not follow from the judge having section 28(2) open before him at 2.15 p.m. after Miss De Haney objected to the constitution of the EAT that at 12.40 p.m., when ascertaining whether the parties confirmed their consent, he had that particular provision in front of him or that he cited it to the parties before they consented.  The statement in paragraph 3, which introduces this section of the judgment, contains nothing about the employees' representative, and it is far from clear that the judge said anything at all about section 28(2) at the relevant time.   It is significant that Ms Gower and her instructing solicitor cannot say that he did. 
20.	The judge then went on to say that identification of Mr Hodgkins in paragraph 3 in the chronological place it appears in the judgment indicates that his status was made known before the consent was given.  He said that when this happens parties often ask and, if they do he makes it known, usually through his clerk.  Again with respect to the judge, that reasoning is open to question.  The fact that the judge, having heard argument after 2 p.m. when unquestionably Miss De Haney knew Mr Hodgkins' status, said in paragraph 3 of his judgment that Mr Hodgkins was an employers' representative does not justify an inference that at 12.40 p.m. that fact was indicated to the parties.  He does not say that he told the parties that fact at that, or indeed at any, stage.  In contrast, it is clear from Miss De Haney's evidence that she did not ask about the status of the single lay member until 2 p.m., when she was asked to sign the consent, and that she did not know that Mr Hodgkins was a representative of employers until that information was provided just after 2 p.m.  
21.	Third, the judge said that he was satisfied from exchanges with Miss De Haney that she knew the case could not proceed "one down" without her consent and that she knew the status of Mr Hodgkins.  It has never been in doubt that Miss De Haney knew that her consent was required.  The judge unfortunately is not specific as to what it was which was said in the exchanges to which he refers that leads him to be satisfied that Miss De Haney knew the status of Mr Hodgkins.  Nothing is said by him as to why he formed that impression, and it is denied by Miss De Haney, in that she makes clear that her knowledge of the status of Mr Hodgkins only came at just after 2 p.m. pursuant to her inquiry at that point. Ms Gower very frankly told the court that she does not say that she can recollect something said in open court that showed Miss De Haney was either told or knew the status of Mr Hodgkins.
22.	In the second e- mail the judge says this:
"I gave the 'housekeeping' directions.  Miss Gower also refers to this as introducing Mr Hodgkins.  It is not my practice to introduce the members here as there is a short cv publicly available and we all have our names on plates on the Bench.  There would be nothing to say about him except that he is from the employers' panel.  I have also talked to my usher and I do not think he told the parties Mr Hodgkins' status.  As I say, he would probably check with me before handing this on.  For those reasons I am sure I mentioned Mr Hodgkins' status when I introduced him in open court before Ms De Haney opened."
23.	Again with respect to the judge, I find his reasoning for being sure less than satisfactory.  There is an obvious reason why the judge introduced Mr Hodgkins and, indeed, introduced himself, as Ms Gower makes clear in paragraph 4 of her note. That reason is that neither he nor Mr Hodgkins was due to hear the appeal at all.  It is apparent from the Cause List for that day that the appeal was due to be heard at 11.45 a.m. by His Honour Judge Prophet and two other lay members, not including Mr Hodgkins.  In those circumstances, it seems to me obvious that the judge would want to explain why it was that he and Mr Hodgkins were hearing the appeal.  So far as the usher is concerned, all that the judge is saying is that the usher did not tell the parties about Mr Hodgkins' status.  The judge does not say that it was the usher who asked Miss De Haney to sign the consent form. The reason, therefore, which the judge gives for being sure that he mentioned Mr Hodgkins' status before Miss De Haney opened her case is the single inference from the fact that Ms Gower referred in her note to the judge introducing Mr Hodgkins.  For the reason which I have given, I cannot accept that that is the proper inference.  Ms Gower does not say that she or her instructing solicitor recalls the judge explaining Mr Hodgkins' status.  As against that, one has the clear statement by Miss De Haney that it was not until her own inquiry at 2 p.m. that she learnt that Mr Hodgkins was an employers' representative.  Consistently with that evidence she immediately then proceeded to ask the EAT to discharge itself.
24.	On the material which has been put before us, I am not satisfied that Miss De Haney did give her informed consent.  Indeed, I conclude that, on the balance of probabilities, she was not informed that Mr Hodgkins was an employers' representative until by her own efforts she obtained that information after 2 p.m.  In short, her plausible evidence of direct recollection does not seem to me to be outweighed by the other material that is put before us.  That other material, I would emphasise, does not include evidence of direct recollection of what was said of Mr Hodgkins' status.  It follows that I would conclude that, the informed consent of Miss De Haney not having been obtained, the requirement of section 28(3) has not been complied with and that EAT did not have jurisdiction to entertain her appeal.  
25.	That conclusion dispenses with the need to consider Mr Diamond's other arguments relating to the exercise of discretion by the EAT.  In consequence, I would conclude that the provisions of Civil Procedure Rules 52.11(3) apply.  This court is bound to allow an appeal where the decision of the lower court was, so far as relevant, unjust because of a serious procedural or other irregularity in the proceedings in the lower court.  
26.	We were addressed by Ms Gower on whether this court should consider the merits of the substantive appeal, and she invited us to conclude that, in effect, the appeal would be hopeless and that this court should so hold in order to avoid further costs and delay by remitting the matter back to the EAT.  I do not think that that is the right order that we should make.  The position is that the EAT alone has jurisdiction to hear an appeal from the Employment Tribunal (section 21 of the 1996 Act).  An appellant is entitled to have the appeal determined by the specialist body appointed by Parliament to hear the appeal, that is to say the EAT.  It seems to me, therefore, that the order that we should make is that the appeal be allowed, the order of the EAT set aside and that the case be remitted to a differently constituted EAT.  
27.	Before I conclude I would like to mention two points.  
28.	The first is that no imputation whatsoever is or can be made against Mr Hodgkins sitting with the judge in the EAT.  The fact that he is an employers' representative is only significant because of section 28(2).  It has been my experience, as a judge of the EAT, that the lay members of the EAT go about their task diligently and even- handedly.  What they are required to do is to bring their particular experience, which they have gained as employees or in management, to bear on the problems which are put before the EAT, and they do that in general in a wholly impartial manner.  This is an appeal on a technical point, but what I have called the rule of equality is one to which Parliament has plainly attached importance; hence section 28(2).  
29.	The second point relates to the manner in which the consent of the parties is obtained for the purposes of section 28(3).  This case has demonstrated how desirable it is that there should be a practice which avoids controversy as to whether or not consent is given.  The practice that is adopted in the EAT, it appears, is that of requiring the parties to sign a consent form.  It appears not to be a requirement of the 1996 Act or of the Employment Appeal Tribunal Rules.  In contrast, it is plainly a requirement that the consent of the parties be obtained when the Tribunal is to be constituted with less than two lay members (see section 4(3)(e) of the 1996 Act).  Unfortunately, in the present case the written consent of the parties was not sought until after the commencement of the hearing.  The better practice must be that such written consent is sought before the commencement of the hearing and that the court should be astute to ascertain that the parties have truly given their consent.  We were not supplied with the form of consent that is used by the EAT.  I would hope that it would include the facts which must be given to a party when consent to a two member panel is sought pursuant to section 28(3).  Thus, it must, I would have thought, include the fact that Parliament has provided for the rule of equality in section 28(2).  The EAT should then go on to ask whether the parties, nevertheless, give their consent to a constitution other than in accordance with section 28(2), and it should indicate what it is plain from section 28(2) itself is the vital piece of information about the lay member who is sitting on the case, that is to say whether or not such member is a person whose knowledge or experience of industrial relations is as a representative of employees or as a representative of workers.  Only if the EAT is careful on that point will it ensure that there has been true consent given to the constitution to hear the appeal.  
30.	However, for the reasons which I have given, I would allow the appeal and make the other orders which I have indicated.
31.	LORD JUSTICE WALLER:  I agree that for the reasons given by my Lord this appeal should be allowed.
32.	LORD JUSTICE CARNWATH:  I also agree.  I would only add this.  I have considerable sympathy both for the EAT, which was seeking to avoid additional delay and expense, and for the respondents, who will incur further cost and inconvenience in resolving an appeal which may turn out to be wholly without merit.  Ms Gower's suggestion that we should deal with the matter on the merits, even if against her on the procedural point, has some attractions.  However, the right given by Parliament is to have this matter decided by a properly constituted EAT including a balance of lay representatives.  
33.	In this case the appellant was deprived of that right, not, as I see it, through any fault of her own or indeed of the EAT, but because of the unfortunate fact that when the matter was called on for hearing, the necessary withdrawal of one member meant that a properly constituted tribunal was not available.  That important procedural right was one which Parliament has given her.  Only in exceptional circumstances, in my view, should we take away that right, by substituting a decision of this court.  
34.	Accordingly, I agree that the appeal should succeed.
Order: Appeal allowed with costs.