Earlier this month, Sir Keith Lindblom, the Senior President of Tribunals (SPT), published a 14-page response to the consultation on the panel composition of employment tribunals (ETs) and the Employment Appeal Tribunal (EAT), which was launched in January 2023 (the Consultation). Alongside this response, he published a four-page draft Practice Direction which is set to come into effect on 29 October 2024 (the draft Practice Direction).

In this article, we explore the key takeaways arising from both the Practice Direction and the Consultation.

January 2023 Consultation recap

The composition of tribunals is governed by section 4 of the Employment Tribunals Act 1996 (ETA 1996) which, in essence, ensures that ETs comprise individuals with the appropriate legal and practical expertise to decide employment disputes fairly and effectively.

The SPT launched the consultation on 30 January 2023, on the basis that section 35 of the Judicial Review and Courts Act 2022 will amend the ETA 1996. The new provisions will afford the Lord Chancellor the authority, which can be delegated to the SPT, to determine the composition of panels in ETs and the EAT.

It was noted that, in making these decisions on behalf of the Lord Chancellor, the SPT must ensure that:

• the tribunals are accessible;
• proceedings are fair and handled efficiently;
• members of tribunals have the necessary expertise and subject knowledge in the cases they decide; and
• innovative methods are developed in resolving matters brought before ETs.

The consultation concluded on 27 March 2023 after gathering 120 responses, mainly from non-legal members (NLMs) and judges.

The Consultation response overview

The SPT emphasised the value of NLMs but focused on the efficient, effective and proportionate delivery of justice, without unduly relying on the number of responses for or against a proposal. The SPT considered arguments about diversity and the quality of justice, concluding that while a diverse judiciary is desirable, it should not dictate the composition of tribunals for individual cases. The SPT also found that factual disputes and inferences of fact could be effectively resolved by a judge alone, and that the expertise of NLMs is most valuable in cases requiring an assessment of reasonableness from industrial experience.

The SPT decided not to implement a general rule for cases currently heard by panels to be heard by judges sitting alone, but instead adopted a neutral approach where each case will be individually assessed to determine whether it should be heard by a panel or a judge sitting alone. This approach applies to all substantive hearings in the ETs, with the exception of undefended cases, which will continue to be heard by a judge sitting alone by default.

For the EAT, the SPT decided to maintain the status quo of cases generally being heard by a judge sitting alone.

Preliminary hearings in the ETs will be undertaken by a judge sitting alone by default, unless a judge or leadership judge decides otherwise in the interests of justice and the overriding objective. Additionally, a new power will be introduced for ETs to hear cases with two judges, for training and development purposes. However, this will be limited and only a leadership judge (i.e. the non-trainee judge) can make such a direction.

The SPT concluded that the decision as to whether to sit with a panel should be guided by the interests of justice and the overriding objective, without specifying factors beyond these principles.

Draft Practice Direction summary

The key points in the Consultation response were echoed in the draft Practice Direction. To summarise:

• for final hearings, a judge will decide whether the tribunal should consist of a judge sitting alone or a judge with an employee and employer member, unless a leadership judge opts for two judges for training purposes;
• preliminary hearings remain unchanged;
• the EAT's position also remains unchanged;
• a judge will sit alone in undefended proceedings;
• a leadership judge must choose a presiding judge for ETs where there will be two judges and, in all other multi-person ETs, the judge will preside; and
• interestingly, the draft Practice Direction applies to matters decided on or after 29 October 2024. However, if the case was listed for a hearing prior to 29 October 2024 and the hearing takes place fully or partly on or after 29 October 2024, the tribunal may be constituted in accordance with the law before the Practice Direction was made.

Impact

The Consultation was set against the backdrop of an overburdened ET system that needed to optimise its scarce resources and schedule claims efficiently. This is the position we still see today. Despite these constraints, the Consultation raised important questions about the necessity of NLMs in cases that would hinge on intricate legal arguments. While not made public, the Consultation referred to draft regulations that had been shared with the SPT by the Ministry of Justice, which aimed to implement the suggested changes. The response received earlier this July had been anticipated with interest and focused on whether the feedback from the Consultation would lead to any significant revisions to the initial plans. As we have discussed above, the response is largely in line with the Consultation.

Moving forward, we understand that the SPT is expected to issue guidance to judges to ensure consistent application of these principles, and data will be monitored to ensure the discretion to sit with a panel is exercised appropriately.

If you would like to read the draft Practice Direction or the Consultation response in full, you can do so here.