Consent, under s.28(3) Employment Tribunals Act 1996, for the Employment Appeal Tribunal to sit with unequal numbers of appointed members, had to be by informed knowledge of whether the proposed panel was made up of a judge and employers' representative(s) or employees' representative(s). (Obiter) It would be better practice if written consent was sought before the commencement of the hearing and the court should be astute to ascertain whether the parties had truly given their consent.Appeal by the appellant employee ('D') from the order of the Employment Appeal Tribunal ('EAT'), HH Judge McMullen QC presiding, on 10 April 2003 to refuse to discharge itself on the basis that it was not in the interests of the administration of justice, as the hearing had started. The issue was, where an appellant employee appealed to the EAT, appeared in person, and had consented for the appeal to be heard by a judge and one appointed member, but shortly thereafter discovered that the appointed member was an employers' representative and asked the EAT to discharge itself, whether the EAT had erred in law in refusing that request. No transcript of the hearing existed, and there were differences in the accounts of whether there had been express reference to the appointed member's status. D argued that: (i) the consent envisaged by s.28(3) Employment Tribunals Act 1996 was informed consent; (ii) D should have been told that the appointed member was an employers' representative and that there was no employees' representative hearing the case before she gave her consent; and (iii) the requirement that the parties consent to the panel of members, where there was no equality between the employees' and employers' representative(s), was of importance in the sensitive area of employment relations. The respondent argued that D knew from her attendance at the preliminary hearing that a normal constitution was three members and that consent was needed for a two-member panel.HELD: (1) Section 28(3) operated as an exception to the general rule in s.28(2) that there be equality in numbers as between the appointed members, and should therefore be construed restrictively. The knowledge of a party giving consent should include information as to whether the proposed panel of two or four members was made up of a judge and employers' representative(s) or employees' representative(s). (2) This court was not satisfied that D had given informed consent. Section 28(3) had not been complied with, and the EAT had had no jurisdiction to entertain D's appeal. (3) (Obiter) It would be better practice if written consent was sought before the commencement of the hearing and the court should be astute to ascertain whether the parties had truly given their consent.Appeal allowed. Matter remitted to a differently constituted EAT.

[2003] EWCA Civ 1637

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