Dorbcrest Homes Limited v Fishwick 
All lawyers have a favourite litigation nightmare. Not all of them are as unusual as Dorbcrest Homes Ltd v Fishwick  UKEAT/0507/09/JOJ. The claimant went to the tribunal to recover an unpaid redundancy payment because of a layoff. At the time he was not dismissed. After putting in the claim but before it was heard the claimant was fired and added a second claim for unfair dismissal. He applied to have both heard together. Employment Judge O’Hara, sitting alone, was listed to deal with the redundancy payment point and heard the application. The judge granted the request and got the parties to deal with both cases there and then. She obtained the consent of the employer to do so and found for the claimant, awarding £8,000 compensation.
Unfortunately the judge forgot that s 4(3) (e) Employment Tribunals Act 1996 requires written consent if a Judge sitting alone is to hear a claim for unfair dismissal. She could have heard the redundancy question on her own but not the second claim. When the penny dropped the employer applied for a review, even though its representative had agreed to the hearing, claiming he had been pressurised by the judge. The review was granted and the unfair dismissal decision was set aside. Judge O’Hara then relisted the case for her to deal with it at a new hearing together with two members. At that hearing the judge was asked to stand down because she had already made her views clear. She refused and the case proceeded. The Claimant won again, this time nearly doubling his award at over £17,000.
Unsurprisingly the bruised employer went off to the Employment Appeal Tribunal (EAT) complaining amongst other matters about the Judge helping the claimant by reminding him of evidence he had given at the first hearing which was less damaging than the answers he gave second time around.
The EAT upheld the appeal saying that any informed fair minded observer would believe that the other members would have been influenced by the opinions previously formed by the judge. Whether or not they had was not the point. "In cases of this kind appearances are as important as reality,"said the President. Everyone must now return to the tribunal for a third hearing by a fresh tribunal.
Next time you are told about the inherent uncertainty of litigation this may be a good case to remember!
First published in The Grapevine Magazine
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