EAT PRACTICE AND PROCEDURE
Right to be heard
Absence of party
A preliminary hearing was summoned to determine whether claims that the Claimant had been discriminated against by being subject to a blacklist should be struck out against one or all of the five Respondents. On that basis, the Fourth Respondent did not attend. It did not anticipate that the hearing would resolve as a matter of fact whether there had been such a blacklist. However, the Employment Judge was asked by the parties present (the Claimant, and Respondents 1-3) to do so, since the existence of such a blacklist as defined by the Regulations was an essential precursor to a finding of liability against any Respondent. The Judge found against the Claimant, but on the basis of factual findings that might have been helpful to an appeal by the Claimant, and if so would prejudice the Fourth Respondent’s position.
Held: it was a material irregularity to proceed in a way that might materially affect a party to proceedings without allowing that party a proper opportunity to meet the case made against it. The only way to remedy it would be for the matter to be remitted for rehearing – and, since the case involved determination of facts and inference in a matter of discrimination, and the discretion to sit as a panel of three had not been exercised but there was every reason to do so and no compelling reason advanced to the contrary, remission would be to a panel of three, though with the same Judge presiding, to hear questions arising.
Judges:
Langstaff P J
Citations:
[2012] UKEAT 0490 – 11 – 2206
Links:
Jurisdiction:
England and Wales
Employment
Updated: 04 November 2022; Ref: scu.463519