Will tribunal panels of three become a rarity?

On 30 January 2023, the current Senior President of the Tribunals (‘SPT’), Sir Keith Lindblom, launched a consultation on panel composition in the employment tribunals and the EAT, setting out his proposals for the exercise of the incoming powers under 55.4 and 28 Employment Tribunals Act. The SPT accepted that the strongest argument for deploying lay members was that their experience informed decision-making on crucial issues, such as whether an adjustment for a disabled person was reasonable. In some cases, decisions on an issue by a panel may be stronger than a judge might make sitting alone. While the SPT was inclined to carry on with the EAT’s approach of judges sitting alone by default (with the discretion to sit with two lay members), his view was that the present provisions relating to the use of lay members in employment tribunals was too wide. They do not help to identify claims in which lay members’ contributions would be most helpful, and they could contribute to a wasteful use of resources. It was also
difficult to justify some of the current distinctions between cases that required a panel and those that do not (such as whistleblowing cases). Given the above concerns and the current pressure on the tribunal system, the SPT proposed that employment tribunals
should become a forum where substantive decisions are taken by a judge alone by default, with a discretion for the judge to sit with two non-legal members. Furthermore, in cases where non-legal members were not deployed, the SPT proposed to allow for the possibility of a panel of two judges. The consultation noted that similar provisions already apply in the First-tier Tribunal and could be
appropriate in complex cases or to assist with the development of judges. What will happen? My guess is that after the consultation, to save money, three panel member employment tribunals will become a rarity.