Presidential Guidance (Employment Tribunals: Panel Composition)

1 Rule 7 of the Employment Tribunals Rules of Procedure 2013 allows the Presidents to publish guidance as to matters of practice. Such guidance must be published in an appropriate manner to bring it to the attention of claimants, respondents and their advisers. This guidance, issued jointly, concerns panel composition. Employment tribunals must have regard to this guidance, but they are not bound by it.

2 The Senior President of Tribunals has issued a practice direction on panel composition in the employment tribunals and the Employment Appeal Tribunal: Practice Direction (Employment tribunals and Employment Appeal Tribunal: Panel composition)[2024] ICR1560. This takes effect from 29 October 20241^F1 alongside other changes to the Employment Tribunals Act 19962 and the Employment Tribunals Rules of Procedure3. In respect of the employment tribunals, the practice direction provides:

“3. Subject to paragraph 5, in respect of matters that fall to be decided at or following a final hearing, a judge will decide, having regard to the interests of justice and the overriding objective, whether an employment tribunal is to consist of:

(a) a judge sitting alone; or

(b) a judge, an employee member, and an employer member;

unless a leadership judge decides that it should consist of two judges for the purposes of training and development.

“4. In respect of matters that fall to be decided at a preliminary hearing, an employment tribunal is to consist of a judge sitting alone unless:

(a) a judge decides that, having regard to the interests of justice and the overriding objective, it should consist of a judge, an employee member, and an employer member; or

(b) a leadership judge decides that it should consist of two judges for the purposes of training and development.

“5. In respect of matters that fall to be decided at a hearing in proceedings in which the person (or, where more than one, each of the persons) against whom the proceedings are brought does not, or has ceased to, contest the case, an employment tribunal is to consist of a judge sitting alone unless:

(a) a judge decides that, having regard to the interests of justice and the overriding objective, it should consist of a judge, an employee member, and an employer member; or

(b) a leadership judge decides that it should consist of two judges for the purposes of training and development.

“6. In respect of any other matter an employment tribunal is to consist of a judge. This includes consideration of whether a party’s application for reconsideration discloses a reasonable prospect of a judgment being varied or revoked …

“9. Where a leadership judge exercises the power to have an employment tribunal consist of two judges, the leadership judge must choose a judge to be the presiding member of the tribunal. In any other instance where a tribunal consists of more than one person, the judge will be the presiding member.

“10. This practice direction applies to any matter that falls to be decided on or after 29 October 2024, save that if that matter was listed for a hearing before that date, and the hearing takes place partly or wholly on or after that date, the tribunal may be constituted in accordance with the law as it stood before this practice direction was made.”

3 Non-legal members are independently appointed to judicial office after consultation with organisations or associations representative of employers (employer members) or organisations or associations representative of employees (employee members). They bring to the process of adjudication their experience of the workplace (including contemporary workplace norms, practices and challenges) so that, where appropriate, their experience can inform the legal analysis of the judge who chairs the panel. It also ensures that any decisions to which they contribute are made with an understanding of the realities of the modern workplace and current industrial practices.

4 In the words of the Senior President in his response to his consultation paper, their “appropriate involvement in the work of the employment tribunals … is, and will remain, an indispensable part of the style and culture of tribunals justice”4. The Senior President’s expectation, as also expressed in his response to his consultation paper, is that we will issue guidance to judges “to assist them in deciding whether a case should be heard by a panel, and to encourage the application of consistent principles across Great Britain, which should include matters to be taken into consideration when having regard to the interests of justice and the overriding objective”5. This document contains that guidance.

5 The Senior President’s practice direction refers to the overriding objective. As set out at rule 2 of the Employment Tribunals Rules of Procedure, the overriding objective is to deal with cases fairly and justly. This includes, so far as practicable:

“(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(c) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense.”

6 Each case will...