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Issue 42 (January 2000)

Contents

TUPE consultation rights transfer with the undertaking
Redundancy appeals - or so the EAT thinks
Take care to include all claims in originating applications
The significance of recurring disability
Available workers of all descriptions unite
A clear and present danger at work
Independent and impartial?

Independent and impartial?

Smith v Secretary of State for Trade & Industry [2000] IRLR 6

The Human Rights Act will come into force on 1st October 2000. The Act incorporates the European Convention on Human Rights into domestic law. Article 6(1) of the Convention reads: "In the determination of his civil rights and obligations...everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law".

Amongst other things Employment Tribunals determine claims brought against the Secretary of State for Trade and Industry for redundancy payments where an employer is insolvent. Employment Tribunal wing members are appointed by the Secretary of State for Trade and Industry, their allowances are paid by him, the Rules of Procedure for Tribunals are made by the Secretary of State and the Department of Trade and Industry funds the Employment Tribunal Service. Are Employment Tribunals therefore "an independent and impartial Tribunal" within Article 6(1) of the Convention?

This issue arose in the above case at the instigation of the Employment Appeal Tribunal. The EAT invited submissions from an expert on human rights law as to whether an Employment Tribunal could adjudicate on a claim to the Secretary of State having regard to Article 6 of the Convention. The Smith case involved a claim against the Secretary of State by Mr Smith the sole director and controlling shareholder of a company.

As far as the human rights aspects of the case were concerned the EAT said "it is our view that there is a real and troubling question as to whether Employment Tribunals may properly and lawfully adjudicate on claims made against the Secretary of State having regard to Article 6 of the Convention". Whilst not reaching any conclusions about the independence and impartiality of Employment Tribunals on these sort of claims, the EAT granted leave to appeal to the Court of Appeal and asked for matters to be clarified before 1st October 2000. The issue has now been raised, ventilated and will now give rise to considerable uncertainty until it is resolved. This is just one example of how the European Convention on Human Rights looks set to transform attitudes to justice in the UK. We will all be on a sharp learning curve. The EAT have started, but not concluded, the debate about Employment Tribunals.