The Claimant in the ET was identified in the claim form as being represented by his trade union. The matter had been listed for a full merits hearing to take place in July 2021. In the run-up to that hearing, the Claimant’s representative wrote to the ET indicating that the last contact with the Claimant, at which point he was overseas, had been in February 2021, and that all attempts to establish contact with him had failed. A judge directed that the full merits hearing be postponed, and, subsequently, that there be a preliminary hearing to consider whether the claim should be struck out. During the course of the preliminary hearing the Claimant’s representative stated that he had blanket oral authority that enabled him to continue to conduct the claim on the Claimant’s behalf in his absence, including at trial. He confirmed that he had nothing in writing. He asked that the matter proceed to a full hearing on that basis, and on the basis that the only witness for the Claimant would be his trade union representative. The Respondent’s representative queried whether there could be a valid oral authority to that effect, and invited the ET to direct that the Claimant’s representative give evidence which could be tested on oath or affirmation as to the terms of the agreement with the Claimant. The ET decided to refuse the strike out application and to direct that the matter be relisted for a merits hearing to proceed, whether or not in the continued absence of the Claimant. The Respondent appealed.

The EAT allowed the appeal. The ET had not erred by failing to consider whether the terms of the agreement between the Claimant and the representative might be contrary to the common law doctrine of maintenance or champerty and hence unenforceable, with the consequence that there was no valid authority to represent. However, it did err by proceeding in the way that it did, without taking further steps to investigate and satisfy itself of the position. That was unfair to the Respondent.