Where the views and experience of the Tribunal Members were likely to be of assistance to the decision-making process a Chairman should generally decide that the case be heard by a full Tribunal and the effect of the irregularity of not exercising this discretion should generally be remission of the case for a hearing by a full employment tribunal.
Appeal from a decision of a chairman of an employment tribunal who sat alone on 11 March 1998. The claim was made under s.13 Employment Rights Act 1996 ('ERA') and Mr Howell ('H') maintained that the Post Office had made an unlawful deduction from his wages. H also sought a declaration as to his terms and conditions of employment, pursuant to s.11 ERA. The issues related to entitlement to overtime for work on a bank holiday. At the time of the initial hearing and in written submissions that followed, neither side raised with the other, or made any objection to, the case being heard by a chairman sitting alone. There was no overt consideration by the chairman as to whether he should sit alone. An issue in the case was the construction and effect (or potential effect) on individual contracts of a 1995 collective agreement.
HELD: (1) Before he sat alone in qualifying proceedings identified by s.4(3) Industrial Tribunals Act 1996 ('ITA'), a chairman must have exercised his discretion conferred by s.4(5) ITA. (2) A case could not be heard by a chairman sitting alone without the matters referred to in s.4(5) ITA being evaluated by the chairman. (3) The consent of the parties was not determinative as to how the discretion should be exercised. (4) Unless the chairman exercised such discretion an employment tribunal ('ET') comprising a chairman sitting alone was not properly constituted in accordance with the statute. (5) If the ET was not for that reason properly constituted it was a question of jurisdiction and its decision was a nullity: Sogbetun v London Borough of Hackney (1998) IRLR 677. (6) The decision of the chairman was not made without jurisdiction and was therefore not a nullity and his failure to overtly consider the exercise of his power and thus to exercise his discretion was a failure to perform a mandatory obligation which although it did not go to jurisdiction, did constitute an irregularity. (7) The instant case was one in which the contribution of the members of the tribunal would be or would likely to be of real assistance in the decision-making process. Case remitted for hearing by a full tribunal. Leave to appeal granted.
Andrew Burns instructed by M Hirst of Post Office Legal Services for the appellants. Ian Scott instructed by Mr S Auerbach of Pattinson & Brewer for the respondent.
 ICR 913, IRLR 224
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