A tribunal judge may hear a discrimination claim sitting alone where non-legal members are unavailable

Background

In Mostafa v Julier and Slater, the claimant brought claims of direct race and religion discrimination, alleging that he had gone from being a frontrunner for a permanent role to not being interviewed because of his race and religion.

The hearing was listed before a full tribunal panel, but no non-legal members had been booked to attend. The employment judge treated this as a material change in circumstances and exercised discretion to proceed sitting alone.

The judge considered the discrimination claims and dismissed them, concluding that the claimant's treatment was unrelated to his race or religion.

The claimant appealed to the Employment Appeal Tribunal (EAT). Permission was refused on the papers, and the claimant renewed his application at a hearing.

EAT decision

The claimant raised five grounds of appeal, four relating to the decision to proceed without non-legal members and one alleging that the judge had disregarded key evidence.

On panel composition, the EAT considered the Joint Presidential Guidance issued on 29 October 2024, which gave judges flexibility to proceed sitting alone where practical difficulties arose in finding members. The employment judge had applied the Guidance correctly.

The EAT found that the claimant had no unqualified right to a full panel. On informed consent, the judge had asked the claimant whether he was content to proceed, and the claimant had agreed. The judge was not obliged to give detailed advice about the role of non-legal members; it was sufficient to alert the claimant to the change and seek his views.

The case authority cited in ground four could not be found. The EAT raised the possibility that it had been generated by AI. It was of no assistance. On the fifth ground, the EAT endorsed the earlier finding that the challenge to the judge's treatment of evidence was a generalised assertion without particularity, disclosing no arguable error of law.

The renewed application for permission to appeal was refused.

Learning points for employers

Employers should be aware that, following the Joint Presidential Guidance of October 2024, employment tribunals now have clear discretion to proceed with a judge sitting alone if non-legal members are unavailable, including in discrimination cases. Importantly, a change in the composition of the tribunal panel does not, in itself, constitute grounds for appeal.

Additionally, parties relying on case law in tribunal proceedings must verify that cited authorities exist and are accurately referenced. The Employment Appeal Tribunal (EAT) has highlighted concerns about the use of AI tools for legal research, noting that reliance on a non-existent case can undermine an argument entirely.

For more information or advice, please get in touch with Sharmin Chowdhury from our Employment team.