Appeal No.UKEAT/0639/04/DA & UKEAT/0640/04/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 November 2004

Before
THE HONOURABLE MR JUSTICE BEAN
MR M CLANCY
DR B V FITZGERALD MBE LLD

(1) BROMLEY APPOINTMENTS.COM LTD
(2) HUMAN RESOURCES GROUP LTD 	APPELLANTS
(3) MR J C PARKINSON

MRS P MACKINNON	RESPONDENT

MRS P MACKINNON	APPELLANT

(1) BROMLEY APPOINTMENTS.COM LTD
(2) HUMAN RESOURCES GROUP LTD	RESPONDENTS
(3) MR J C PARKINSON

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For Mrs MacKinnon	MR ROBIN HOWARD
(of Counsel)
Instructed by:
Messrs Judge & Priestly Solicitors
Justin House
6 West Street
Bromley
Kent
BR1 1JN	
For  (1) Bromley Appointments.Com Ltd
        (2) Human Resources Group Ltd
        (3) Mr J C Parkinson
	MR MARK SHULMAN
(Solicitor)
Messrs Cumberland Ellis Peirs Solicitors
Columbia House
69 Aldwych
London
WC2B 4RW

SUMMARY

Practice and procedure

Mistaken disclosure of documents by chairman – not amounting to appearance of bias justifying recusal – threat of litigation by aggrieved party irrelevant.

Selection of members of Tribunal – desirability of continuity of membership of tribunal between liability and remedies hearings.

THE HONOURABLE MR JUSTICE BEAN

1.	The Applicant in this case, Patricia MacKinnon, brought a complaint against her former employers on a number of grounds.  There were three Respondents to the application: it is unnecessary, for the purposes of this appeal, to distinguish between them.  By its Liability Decision, dated 11 March 2004, the Tribunal found direct sex discrimination against all three Respondents and constructive unfair dismissal against one, but dismissed further claims for victimisation under the Sex Discrimination Act 1975.  The members of the Tribunal which made that Decision were Mr Sprack, Chairman, and Ms Croasdell and Ms Hemmings, lay members.

2.	The Respondents, to whom we shall refer collectively as the employers, appealed against the Liability Decision but that appeal was dismissed at a preliminary hearing in this Tribunal, Mitting J presiding, on 25 August 2004.  

3.	The Remedies Hearing was listed for 8 April 2004.  On that date, however, the Remedies Hearing did not proceed on the merits.  Instead the Tribunal made an Order consisting of directions by the Chairman, recorded in a letter of 14 April.  Paragraph 5 provided as follows:

“The First Respondent is to provide to the Chairman, on or before 30 April, copies of its management accounts and the minutes of the regular monthly meetings at which they were presented, covering the period from 1 May 2003 to date.  The Chairman will then decide whether the documents in question are potentially prohibitive [sic – this should obviously read “probative”], and the extent (if any) to which they are confidential…”

The remainder of the Order need not be set out for present purposes.  

4.	By a letter of 26 April the employers’ solicitors, Messrs Hextalls, wrote as follows:

“Pursuant to direction number 5 of the directions of the Tribunal dated 14 April 2004, we enclose copies of the First Respondent’s management accounts from May 2003 to February 2004….
We would be grateful if the documents could be placed before the Chairman in order that he can consider the same in accordance with the directions.  The Respondent’s position is that the documents contain commercially sensitive information.”

5.	On 6 May 2004, a letter was sent on the instructions of the Chairman, Mr Sprack, paragraph 3 of which was in the following terms:

“I reviewed the documents supplied by the Respondent under cover of its letter of 26 April 2004, pursuant to direction number 5 of the directions of 14 April 2004, and relating to the management accounts and minutes.  While the documents might in normal course of events be considered commercially sensitive, I am not persuaded that what is contained within them is so confidential or sensitive as to preclude inspection.  Further, inspection of the documents is necessary for the Applicant to put forward her case on remedy properly.  I have, therefore, concluded that inspection by the Applicant is necessary to dispose of the case justly, in accordance with Regulation 10 of the Employment Tribunals Regulations and the principles contained in the case of Science Research Council v Nassé [1979] ICR 921 HL.  This was not a case where the Respondent sought to have particular features redacted or anonymised.  I therefore conclude that the documents should be made available for inspection, and copies are enclosed for the Applicant with this letter.”

6.	Mr Robin Howard for the Applicant accepts that the last ten words of that letter and decision of the Chairman to have copies of the allegedly sensitive documents sent direct to his client’s solicitors was, as he put it, “procedurally unsound”.  What the Chairman ought to have done is simply make an order for inspection and sent that order, contained in a letter, to both parties.  We agree.  

7.	In fairness to the Chairman it should be pointed out that the letter from Hextalls dated 26 April, to which we have already referred, does not make any application for redaction, for anonymisation, for a stay pending appeal, or anything of the kind, and since it is convenient administrative practice in some cases for the Employment Tribunal itself to copy uncontentious documents to both sides, rather than order one side to send copies to the other, it is easy to see why the Chairman did as he did.  But these were not uncontroversial documents and the shortcut, however well intended, was incorrect.  It has, unfortunately, led to a considerable storm, as will be seen from the subsequent history.

8.	On 7 May 2004 the employers’ solicitors wrote a lengthy letter to the Regional Chairman, Mr John Warren.  It is sufficient to read the second half of the letter:

““We are writing to object in the strongest possible terms about the Chairman’s conduct in directly forwarding to the Applicant, copies of the documents concerned.  We respectfully suggest that the Tribunal has no power to forward documents in this way.  In our view, the appropriate course would have been for the Chairman to make an Order for Inspection.  It would then have been open to the Respondent to apply to the Tribunal to vary or set aside the requirement for inspection and to have that application judicially considered.  Further, there would have been an opportunity in an appropriate case to appeal against any decision of the Tribunal in relation to an Order for inspection.  Moreover, it would have been open to the Respondent to consider whether the documents ought to be redacted before inspection by the Applicant. 
In any event, we understand from our client that the result of the Chairman’s actions in forwarding the confidential information directly to the Applicant is that there is likely to be a significant adverse commercial impact upon the First Respondent’s business.  The Tribunal has always been aware of the Respondent’s contention that the documents contained commercially sensitive information and of the Respondent’s particular concern that the Applicant could exploit this information to the detriment of the First Respondent.  It appears that the Chairman has not considered whether any of the documents should be redacted or anonymised.  Information has now been disclosed without the First Respondent being given any prior opportunity to make representations or to have such representations judicially considered and, as indicated above, our clients believe this will now seriously prejudice the continued viability of the First Respondent as a going concern.  In short, as the documents have already been disclosed and the Applicant has now had sight of the confidential information, the damage has been done.  Any application by the First Respondent for some form of injunction against the Applicant to restrain the further use of the documents would not afford the First Respondent proper redress for the damage done by the Chairman’s wholly improper action.
In the circumstances, our clients intend to consider whether there are grounds for pursuing an action for breach of confidence against the Employment Tribunals Service as a result of the action taken by the Chairman in the present case.  We would respectfully suggest that in those circumstances, it would be wholly inappropriate and invidious for the Chairman whose conduct is complained of, to continue sitting in the present proceedings which are due to be resumed for a Remedies Hearing on 8 June 2004. 
Furthermore, apart from any other considerations, it is clear that the Respondents would no longer have confidence in the Chairman in the light of the wholly improper action he has taken in providing copies of confidential documents that do not belong to him and which were supplied to him in confidence.  The Respondents have reason to believe that this improper action on the part of the Chairman evidences an unjustifiable bias in favour of the Applicant and this together with potential legal proceedings against the Employment Tribunals Service as a result of the actions of the Chairman would make it difficult, if not impossible, for the Chairman to be seen to be treating the parties on an equal footing in relation to the issues to be considered at the Remedies Hearing.
In the circumstances, we regret to have to ask you to arrange for the Remedies Hearing to be chaired by a different Chairman and we await hearing from you as to the matters raised in this letter.
As a matter of courtesy, we have copied this letter to the Chairman and the Applicant’s solicitors.”
Mr Howard, in his submissions to this Tribunal, described the threat of litigation as an empty threat.  We understand that no proceedings have in fact been instituted.  

9.	The matter did not rest there.  The Regional Chairman naturally considered what to do in the light of the letter of 7 May.  He wrote a personally signed letter to the employers’ solicitors, copied to the Applicant’s solicitors and to Mr Sprack, dated 19 May 2004, in the following terms:

“I have now spoken to the Chairman.  In my opinion when the Chairman had seen the documents which the Respondents were refusing to disclose and the Chairman having concluded that in his view they should be disclosed then the Chairman should have made an order against the Respondent to that effect and set out the reasons for making such an order.
It would then have been for the parties to effect the disclosure or for the Respondent to have sought to review or appeal the decision if they wished.
In view of the above points, I cannot agree that the Chairman’s action is “wholly improper” as you suggest, or that it in any way shows bias in favour of the Applicant, or that he would not be able to do justice between the parties.  However, in view of the allegations which you make, and the language which you use in your letter, the Chairman has asked not to be listed to sit for the remedies hearing on 8 June 2004, and in the circumstances, I have acceded to his request.
The applicant will no doubt be advised by her Solicitor as to the use to which documents disclosed in proceedings can be put.”

10.	An application had been made in the letter from the employers’ solicitors for the hearing on 8 June not to proceed, at any rate with the existing membership.  On 26 May they wrote to the Regional Secretary of the Tribunals asking the Tribunal to reconsider the refusal to grant a stay of the Remedies Hearing, currently listed for 8 June.  They said, among other things, this:

“…we have now been informed by the Regional Chairman of the Employment Tribunal that the Employment Tribunal Chairman previously hearing the case, (Mr J Sprack), has now stood down from the case.  This gives rise to a separate issue as to the constitution of the tribunal at the remedies hearing.  In the light of the fact that the Chairman has now stood down, we assume that a completely new tribunal will be constituted for the hearing.  It would not seem to be appropriate for the previous lay members to remain, given the background to the complaint made against Mr Sprack and the likely effect on the other members of the Tribunal if they are made aware of the circumstances.  We trust that you will agree that the interests of justice require a new tribunal to be appointed if the remedies hearing is to proceed.”

Then, after dealing with other matters, they added:

“In the light of the above, we would respectfully ask for the Remedies Hearing currently listed for 8 June 2004 to be postponed in any event and to be stayed pending the determination of any appeal which the EAT allows to proceed.”

11.	By letter of 27 May the Applicant’s solicitors wrote:

“We oppose the request for a postponement and would ask you to note the following matters. 
1.	The Respondents have already requested a stay of the Remedies Hearing and that request has already been refused.  We submit that there is no reason to alter that decision. 
2.	We believe the written decision of the Tribunal is sufficiently clear to enable the parties to prepare for the Remedies Hearing….
3.	The Respondents question the constitution of the Tribunal for the Remedies Hearing.  We do not believe that this is a relevant issue and that there is any need whatsoever to replace the lay members.  The Respondent made a complaint in respect of Mr Sprack as Chairman as a result of his decision on disclosure.  That complaint was rejected and notwithstanding that matter Mr Sprack decided to withdraw.  The lay members would we assume have had no part in the decision regarding disclosure and the Respondent makes no complaint (because there is no ground for any such complaint) against the lay members. 
There is no need whatsoever to reconstitute a new Tribunal.  The situation can quite properly be dealt with by a new Chairman joining solely for the Remedies Hearing.”

12.	By letter sent on Wednesday 2 June 2004 to both parties, the hearing being fixed for the following Tuesday, the representative of the Regional Secretary of the Tribunals wrote as follows:
“…
3.	The Chairman [Mr Davis, who was referred to earlier in the letter] has considered the Respondent’s representative’s requests for both a stay of proceedings and postponement of the hearing date and balanced that against the desirability of bringing this case to a hearing without delay.
4.	The Chairman has refused the requests for the following reason:
The Remedy Hearing should proceed.
5.	Therefore, the case remains listed for hearing on 08 June 2004 before a newly constituted Tribunal.”

13.	Mr Howard informs us, and we accept (and indeed it is plain from his Skeleton Argument before the Tribunal) that it did not occur to his solicitors until Monday 7 June to check with the Tribunal who would be hearing the case.  They assumed that while Mr Sprack was going to be replaced as Chairman, the two lay members who had taken part in the original hearing would in the usual way sit on the Remedies Hearing.  On the Monday an enquiry was made by telephone and the answer was that the case had been listed before not only a new Chairman, Mr Davis, but also new lay members (that is Mr Blackwell and Mrs Clark).  Objection was taken and was renewed by Mr Howard at the hearing the following day.

14.	The Tribunal made a Decision of that date as follows:

“The members of the Tribunal, Mrs A Clark and Mr M Blackwell, having stood down, this remedy hearing is adjourned generally.
The hearing on remedy will be listed for two consecutive days and will comprise the original members, Ms D E Croasdell and Ms J Hemmings [sic].
The Applicant’s conduct on the proceedings today has been unreasonable and we Order the Applicant to pay to the Respondents costs of £2,240.  Such award of costs is not to be enforced without leave of the Tribunal before the end of the remedy hearing.”

In the Extended Reasons accompanying that summary of the Decision the Tribunal said, as to the lay members standing down:

“After deliberation, the present members decided that it would be in the interests of justice for them to stand down and for the remedy hearing to proceed with the original members.  It was agreed that the case should be listed for two days.”

It will be observed that neither in the summary of the Decision nor in that paragraph that we have just set out is any decision or purported decision made as to who should be the Chairman at the resumed hearing.  It is common ground before us is that the result of that, if it stands, is that the Chairman is to be appointed by the Regional Chairman in the usual way. 

15.	There are three appeals before us.  The Applicant argues that Mr Sprack should chair the Remedies Hearing.  The employers appeal against the Decision made on 8 June to appoint the original lay members, Ms Croasdell and Ms Hemmings, to sit at the Remedies Hearing.  (It is accepted by both sides that the decision of the two members sitting on 8 June to stand down is beyond repair and that, without prejudice to whether they should be eligible to sit again, that particular clock cannot be turned back).  Thirdly, the Applicant appeals against the Order for costs.

16.	The first two of these three issues concern the composition of the Tribunal for the Remedies Hearing.  Regulation 9 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, which applied in the present case, provides that the selection of chairmen and lay members to sit on an employment tribunal case is to be made by the President or the relevant Regional Chairman.  Regulation 9(4) provides:

“The President or the Regional Chairman may at any time select from the appropriate panel another person in substitution for the chairman or other member of the tribunal previously selected to hear any proceedings before a tribunal.”

17.	Regulation 9(4) is widely worded.  Happily there is, we think, common ground between the parties as to the basic principles on which the power is to be exercised so far as relevant to the present case.  It is accepted that there is a presumption that the three Tribunal Members who conducted a liability hearing should also sit on the Remedies Hearing unless there is, as Mr Shulman for the employers put it, “a compelling reason to the contrary”.  

18.	So far as the powers available to the Employment Tribunal or to us on appeal in the present case are concerned, there is a considerable measure of agreement, though not quite common ground.  There is no dispute as to the Employment Tribunal’s jurisdiction to make a costs order nor as to ours to hear an appeal from it.  As to the issues of composition, Mr Howard argues that the Tribunal’s Decision of 8 June as to the future composition of the Tribunal, at least as to lay membership, was within its powers and was correct.  He contends further that on appeal, we have the power to direct the Regional Chairman who should sit on the Remedies Hearing, both chairman and lay members.

19.	Mr Shulman argues that the decision contained in the letter of 2 June, written on behalf of the Regional Secretary, could not be reviewed by the Employment Tribunal, since it was not a “decision”, within the meaning of Rule 2, susceptible to review under Rule 10; and that in any event while the Employment Tribunal members on 8 June had the right to step down, they and their Chairman colleague had no power to decide who should take their place.  He accepts that on appeal we have jurisdiction to set aside the decisions below, but argues that we should not do so.  He further submits that if we do set aside either or both of the decisions below as to composition, we cannot direct the Regional Chairman what to do; but he accepts, as does Mr Howard, that if we do set aside either or both of the Decisions below as to composition it is open to us to give an indication to the Regional Chairman how, in our view, his discretion might properly be exercised.  Indeed both parties encouraged us to do so since otherwise there will be the possibility that whatever decision was reached below as to composition would again be the subject of an attempt to appeal to this Tribunal and the litigation might never end.

20.	The substantive question on issues one and two, as Mr Shulman helpfully formulated it, is whether it is desirable or appropriate for Mr Sprack (issue one) and the original lay members (issue two) to continue to sit.  In the case of Mr Sprack there is the added complication that he has already, set out in the Regional Chairman’s letter of 19 May, expressed reluctance to sit.  That does not apply in the case of the lay members.

The Chairman

21.	We deal first with the suggestion made vehemently in correspondence from the employers’ solicitors that Mr Sprack was obliged to recuse himself on the grounds of apparent bias, coupled with the threat on behalf of their clients to bring a claim for breach of confidence against the Employment Tribunal Service.  The principles of law to be applied are well settled and it is sufficient to refer briefly to the leading cases.  In Porter v Magill [2002] 2 AC 357 and again in Lawal v Northern Spirit Ltd [2003] ICR 856 the House of Lords held that in a case where bias is alleged against a court or tribunal, the question is:

“…whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

22.	In Breeze Benton v Weddell, Cox J sitting alone in this Tribunal on 18 May 2004 (case reference no UKEAT/0873/03) held that if in any case there is a real ground for doubt as to whether a Tribunal should recuse itself, the doubt should be resolved in favour of recusal.  With that we respectfully agree, adding that it derives from the formulation “a real possibility of bias”.

23.	However, it is also instructive to consider the judgment of the Court of Appeal in the important case of Bennett v London Borough of Southwark [2002] IRLR 407 which, in our view, is unaffected by either Porter v Magill or Lawal v Northern Spirit Ltd.  In that case an advocate had made an application on behalf of the applicant in a race discrimination case for an adjournment, which the Tribunal refused.  The advocate, who was black, renewed the application to the Tribunal the following morning, remarking:

“If I were a white barrister I would not be treated in this way.”

and:
“If I were an Oxford-educated white barrister with a plummy voice I would not be put in this position.”

The Tribunal members decided that they could not continue to hear a case on race discrimination in which they themselves had now been accused of racism.  The Tribunal accordingly discharged itself and put the matter over to a fresh tribunal.  

24.	In the Court of Appeal, Sedley LJ at paragraph 19 said this:

“Courts and tribunals do need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment cannot.  Courts and tribunals must be careful to resist such manipulation, not only where it is plainly intentional but equally where the effect of what is said to them, however blind the speaker is to its consequences, will be indistinguishable from the effect of manipulation.  In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96, a specially constituted Court of Appeal (Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C) adopted a passage from the judgment of the Constitutional Court of South Africa in President, RSA v SA Rugby Football Union [1999]…, which included this: 
“The reasonableness of the apprehension [of bias] must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience.  It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions.  They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves.  At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.””

25.	Applying that paragraph to the present case, we for our part do not think that there was any reason why Mr Sprack should have considered himself obliged to recuse himself or to stand down.  A fair-minded observer having considered the facts would not have concluded that there was a real possibility of bias.  

26.	Mr Shulman argues that the perception of a real possibility of bias consists of this; that the fair-minded observer might think that the Chairman, in directing the despatch of copy documents to the Applicant’s representatives, was trying improperly to assist the Applicant and thus failing to keep a fair balance between the two sides.  We have difficulty in understanding this proposition.  It is, as observed in Science Research Council v Nassé [1979] ICR 921 and other cases, not generally a bar to disclosure and inspection of documents that they contain matters of commercial sensitivity.  If, contrary to the obligations emphasised in cases such as Home Office v Harman [1983] 1 AC 280, but Mrs MacKinnon had misused the documents, for example to assist her setting up a competitive business, the misuse would be actionable, would potentially be a contempt of court and would be extraneous to the present litigation, (that is, disclosure of the documents would not improperly assist her in the conduct of the Remedies Hearing).

27.	It would have been better if redaction or anonymisation had been applied for, and it would have been better if the opportunity had been given to the employers’ solicitors to make an appropriate application for redaction or anonymisation before the documents were sent to Mrs MacKinnon’s solicitors.  Mr Sprack made a mistake.  No judge or tribunal chairman or member is infallible.  But the fact that Mr Sprack made a mistake does not, in our view, give rise to the reasonable perception of bias within the formulation of Porter v Magill or Lawal v Northern Spirit Ltd.

28.	Mr Shulman, however, argues that this case is stronger than other cases in that his clients had threatened litigation against the Employment Tribunal Service.  He was unable, when asked by this Tribunal, to produce any authority in which a judge or tribunal chairman or the responsible department or agency has been successfully sued for an error such as the present one, and we are unaware of any ourselves.  On the face of it (though we are not deciding the point) judicial immunity plainly applies.  The threat of litigation was, so far as we can see, correctly described as an “empty threat”.  

29.	It would be a recipe for chaos, in our submission, if a party, dissatisfied with an interlocutory decision of a tribunal or tribunal chairman, could, by threatening to sue the tribunal or the Employment Tribunal Service in respect of it, achieve the recusal of the tribunal chairman and/or members when this could not otherwise be obtained.  We were attracted by the analogy in Mr Howard’s Skeleton Argument that if a defendant in a criminal case throws a missile from the dock at the judge, he cannot then complain that the judge will be biased and is precluded from continuing.  

30.	The question of the chairmanship of the Tribunal at the resumed Remedies Hearing is, as we already have said, agreed to have been left open by paragraph 5 of the Decision of 8 June: in other words, it is for the Regional Chairman to make an appointment under Regulation 9.  We will leave that position as it is, save to direct that in view of the history of the case, the decision should be taken by the Regional Chairman personally or, if he is for any reason unavailable, the papers should be sent to the President of Employment Tribunals for England and Wales for him to decide.  The decision should not be delegated.

31.	The Regional Chairman may wish, if he thinks fit, enquire of Mr Sprack whether in the light of this judgment he is willing and able to sit on the Remedies Hearing.  We would certainly not suggest that he should be ordered or pressurised to do so; but, as we have already indicated, he is not in our view precluded from sitting.  If Mr Sprack is unwilling to sit or the Regional Chairman does not think it right to approach him to sit, then the Chairman for the resumed hearing is simply to be selected by the Regional Chairman in the usual way.

The Lay Members

32.	No allegation of bias or error is made against the Lay Members personally.  Mr Shulman, however, submits that what we have described as the presumption of continuity of membership between a liability hearing and a remedies hearing is rebutted in the present case by two factors.  Firstly, a fair-minded observer would, he argues, conclude that the two original Lay Members, on learning that Mr Sprack had been complained against, threatened with litigation and had stood down, themselves be biased against the employers who had made that application.

33.	Secondly, he argues that once one member of a tribunal has had to stand down, the presumption of continuity is rebutted, and it is better for all three to make a fresh start.  This (we hope not disrespectfully) may be summarised as a submission of “one out, all out”.

34.	We reject both submissions.  We do not consider that any fair-minded observer would conclude that the Lay Members would be biased against the employers on being told, as we accept they inevitably would be told, that Mr Sprack had stood down.  Indeed, since we have already concluded that there is no reasonable perception of a real possibility of bias in the case of the Chairman, the reasoning applies a fortiori in the case of the Lay Members against whom, personally, no allegation is made.

35.	So far as the second ground is concerned, we do not accept that it is desirable, let alone compulsory, that if one member of a three member tribunal which has conducted a liability hearing is unable to sit on the remedies hearing, all three members should be stood down or disqualified from sitting on the remedies hearing.  It is very common in the experience of the Members of this Tribunal that there is a partial change of membership in an employment tribunal between a liability hearing and a remedies hearing.  It very often happens that one of the original three members is not available at all, or not available without an unacceptable delay.  Nevertheless it is advantageous if at least some of the original members can continue at the resumed hearing.  It is true that the continuing members have seen and heard the witnesses at the first hearing and the new member has not, but it is an inappropriate counsel of perfection, in our view, to say that at the resumed hearing there must be either the three original members or none of them.

36.	We do accept Mr Shulman’s submission that the Employment Tribunal on 8 June, the lay members having stood down, had no jurisdiction to direct the composition of the Tribunal, in whole or in part, at the future resumed hearing.  We therefore set aside that element of the Decision of 8 June and remit the matter to the Regional Chairman for him to appoint lay members for the resumed Hearing.  We should say, however, that we see no reason whatsoever why the original lay members, Ms Croasdell and Ms Hemmings, should not sit.  Indeed, if they are available it is, in our view, highly desirable that they should sit.

The Order for Costs

37.	Finally we come to the Applicant’s appeal against the order for costs.  The grounds for the application being made was not, of course, that in applying for the Remedies Hearing to be adjourned and re-listed before a tribunal including the original Lay Members the Applicant through her representatives was acting unreasonably as such.  The complaint which the Tribunal upheld was rather that the application was left until the last moment.  As the Tribunal put it:

“…the Tribunal found that the conduct of the proceedings today had been unreasonable in that the adjournment had been caused solely by the Applicant’s applications and by the failure of the Applicant or her representatives to give advance notice of such applications.” 

38.	As we have already set out, we accept that Mr Howard, his instructing solicitors and his client did not read the letter of 2 June as constituting a decision that the Remedies Hearing should be heard before a wholly new tribunal.  Indeed there is no clue as to the thinking of the decision-maker in reaching that conclusion, if that is indeed what it was, and the phrase “listed… before a newly constituted Tribunal” is at best ambiguous.  On any view, as matters then stood, Mr Sprack would not be sitting, so in a sense the Tribunal would be newly constituted.  Given that there was a dispute upon the correspondence as to whether it was appropriate for the original Lay Members to sit, it was a decision, in our view, to be made by the Regional Chairman under Regulation 9, and not to be left to the chances of listing by a member of the Tribunal staff nor indeed delegated to anyone else.

40.	In any event, we are quite unable to accept that the Applicant’s representatives acted unreasonably when making the application for an adjournment at this late stage.  They were entitled, in our view, to assume (until and unless they had a clear and reasoned decision to the contrary), that the presumption of continuity of membership would apply, not in the case of the Chairman who had stood down, but in the case of the original lay members.  If they had had a reasoned decision saying, ten days before the hearing, that it was inappropriate for the original lay members to sit at the resumed hearing, and they had then left it until the day of the hearing or the evening before to take any steps to challenge it, the Tribunal’s decision on costs would be unimpeachable.  But that is very far from being the present case.  

41.	In our view the order for costs was wholly inappropriate and we set it aside.