EAT Observations on Employment Judges Sitting Alone

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Is it a good idea for employment judges sitting alone to hear unfair dismissal cases?

The EAT (Lady Smith) expressed some reservations about this in McCafferty v Royal Mail.

In this case the claimant was a postman with 19 years service dismissed for gross misconduct by reason of alleged dishonesty. The decision was a majority one. The lay members found the dismissal fair. The employment judge, in the minority, considered that the dismissal was unfair.

On appeal, the decision of the majority was upheld. The majority were entitled, on the evidence, to conclude that there was a reasonable basis on which to conclude there had been fraud and that the response of the employer was within the band of reasonable responses. In contrast, the employment judge had, in the view of Lady Smith substituted her own views for that of the employer 'despite her prefacing them with a self denying ordinance to refrain from so doing'.

Lady Smith pointed out that the lay members of the employment tribunal reached a different conclusion (in her opinion the right one) on the facts of the case, drawing on their 'valuable common sense', than that of the employment judge. She articulated her concerns about the effect of the Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 SI 2012/988 which now allows an employment judge to hear unfair dismissal cases sitting alone.

Many have considered the move away from the 'industrial jury' (see Williams v Compair Maxam Ltd [1982] ICR 156) as a step in the wrong direction. Lady Smith seems to think so too. She remarked that this underlines the need to give careful consideration to any views expressed by parties as to whether proceedings should be heard by an employment judge and members (Employment Tribunals Act 1996, Section 4(5), the provisions of which are still in force).