COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Burton
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE DYSON
| Mrs E Barke
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Mr Bruce Gardiner (instructed by Messrs Wollastons) for the Respondent
Mr Nicholas Underhill QC (instructed by the Treasury Solicitor) for the Department of Trade and Industry as intervener.
Mr Patrick Green for the appellant in another appeal raising the same point as intervener.
Crown Copyright ©
LORD JUSTICE DYSON: This is the Judgment of the Court.
"6.1 What was the nature of the impairment (the Respondents conceding that Mrs Barke was a disabled person);
6.2 Did the Respondents discriminate against Mrs Barke by subjecting her to a detriment and/or by failing to comply with their duty to make reasonable adjustments in the following respects:
6.2.1 by not providing her with reasonable parking arrangements;
6.2.2 by not complying with the recommendations of a report by Medic International in a reasonable time;
6.2.3 by not allowing her to work from home when her symptoms were particularly bad;
6.2.4 by not allowing her to have a reduced lunch break.
6.3 Was Mrs Barke constructively dismissed (if so the Respondents do not contend it was fair);
6.4 Did the Respondents discriminate against Mrs Barke by dismissing her (i.e. did Mrs Barke justifiably resign because of disability discrimination)."
The employment tribunal failed to refer in connection with the Appellant's claim that she had been dismissed within the meaning of section 95(1)(c) of the Employment Rights Act 1996 ("ERA 1996") to the requirement imposed by the Respondent on the Applicant to work in the very hot rooms in which she (and her colleagues) in fact worked during the summer. (The Appellant claimed that this requirement was a breach of her contract of employment, whether of the implied obligation to provide a reasonably safe place to work or of the implied term of trust and confidence, or both.) The employment tribunal accordingly failed to have regard to a relevant factor, or alternatively to a material fact.
Alternatively, in failing to refer to this matter in its written reasons concerning the Appellant's claim of unfair dismissal, the employment tribunal failed to give sufficient reasons for its determination that she had not been dismissed within the meaning of section 95(1)(c) of the ERA 1996.
Despite finding (in paragraph 25 of its reasons) that the respondent was wrong to tell the Appellant that her contract of employment required her to have an hour for lunch, the employment tribunal failed to refer, in connection with the Appellant's claim that she had been unfairly dismissed, to the persistent refusal by the Respondent to allow the Appellant to take only a half-hour lunch break and accordingly (in the circumstances) to work an extra half an hour per day. Accordingly, the employment tribunal failed in this respect to have regard to a relevant factor, or alternatively to a material fact.
Alternatively, in failing to refer to this matter in its written reasons, the employment tribunal failed to give sufficient reasons for its determination that the Appellant was not dismissed within the meaning of section 95(1)(c) of the ERA 1996.
The employment tribunal failed to apply the proper test when determining the Appellant's claim that she had been dismissed within the meaning of section 95(1)(c) of the ERA 1996. The employment tribunal asked itself whether each and every aspect of the Respondent's conduct on which the Appellant relied was itself a breach of contract, instead of asking itself whether the accumulation of those aspects was a breach of the implied term of trust and confidence.
The employment tribunal also failed to apply the proper test when asking itself (in paragraph 79 of its written reasons) whether the "last straw" was itself a breach contract rather than whether the conduct of the Respondent which led the Appellant to resign was "an act in a series whose cumulative effect is to a amount to a breach of the implied term" of trust and confidence (applying the words of Dyson LJ in Omilaju v Waltham Forest London Borough Council  EWCA Civ 1493, at paragraph 19).
In determining in paragraph 75 of its written reasons that it was unreasonable of the Appellant to refuse the Respondent's offer to park or move the Appellant's car because the employment tribunal believed that "the insurance problems could have been sorted out", the employment tribunal made a finding which was supported by no evidence.
Further or alternatively, in so determining, the employment tribunal wrongly failed to have regard to the evidence of the Appellant (recorded in paragraph 51 of its written reasons) that allowing an employee of the Respondent to drive the Appellant's car for whatever reason "could result in her losing her car under the motability scheme."
"…pending the making or the conclusion of an application by the appellant to the employment tribunal (if necessary out of time) for a review or pending the response by the employment tribunal to an invitation from the judge or registrar to clarify, supplement or give its written reasons."
"1. The employment tribunal Chairman is requested, if reasonably practicable within 28 days of the date of the sealed Order, to provide the Tribunal answers to the following questions arising out of the Notice of Appeal, pursuant to Burns v Consignia (No. 2)  IRLR 425:
(i) Whether the Tribunal formed an opinion as to the matters in Grounds 1 and 2 (by reference to paragraph 73 of the Written Reasons or otherwise) and Grounds 3 and 4 (by reference to paragraph 78 of the Written Reasons or otherwise) of the Notice of Appeal, and if so whether it had reasons, and, if so, what they were, for not making a finding of unfair constructive dismissal by reference to them.
(ii) Whether the Tribunal formed an opinion, and if so what (and for what reason or reasons), as to the alleged accumulation of aspects as referred to in Ground 5 of the Notice of Appeal.
(iii) Whether the Tribunal formed an opinion, and if so what (and for what reason or reasons) in relation to the matters in Ground 6 of the Notice of Appeal.
(iv) The reasons for its finding (or lack of finding) referred to in Grounds 10 and 11 of the Notice of Appeal.
The replies from the ET tribunal when received by the EAT are to be served upon the Appellant and Respondent."
i) Does the employment appeal tribunal have jurisdiction to make requests of the kind that Burton J made in the present case?
ii) If yes, was the order he made in this case an appropriate exercise of that jurisdiction?
"10. However, we take the opportunity to say something in relation to what Mr Horan has submitted, because of the practice which is adopted now by the Employment Appeal Tribunal and which we firmly believe is of great value to practitioners and parties before the Employment Appeal Tribunal, and indeed tribunals below, and is welcomed by both the Employment Appeal Tribunal itself and the Employment Tribunals. The practice that we follow is to adopt the procedure recommended and approved by the Court of Appeal in the seminal decision of the court given by Lord Phillips of Worth Matravers MR, who plainly intended it to be of universal application so far as the courts are concerned, in English v Emery Reimbold & Strick Ltd (Practice Note)  1 WLR 2409.
13. Of course there are dangers in remitting to the original tribunal a case where the ground of appeal is inadequacy of reasoning, and there will be some cases in which the reasoning is so inadequate that it would be unsafe to remit to the same tribunal. Equally, there will be the potential danger of giving the opportunity to a court below to reconsider its decision on an entirely different basis. However, remission, carefully controlled, makes, as we see it, entire sense. The remission in this case was expressly on the basis that the tribunal should not call any further oral evidence; it would, of course, have its notes of evidence, and it would be able to express its reasons, which would be based upon the original findings of fact.
14. In the employment sphere, there is the added important factor that the first instance court, the employment tribunal, has, in any event, the power to review of its own motion, which is not open, for example, to a High Court judge; and thus, on a remission, it gives the option to an employment tribunal to widen its own remit in order to actually grant a review and/or hold a hearing for that purpose. Thus, even if the remission itself is expressly limited, there is always the power to which we have referred in the employment tribunal.
15. The practice in the courts generally is one which plainly is dedicated towards saving both the time and the costs of an appeal going forward to a full hearing, such that it is then, and only then, that the decision is quashed, and there is then a rehearing ordered before a fresh tribunal. That can take an enormous amount of time, because there has already been a passage of time pending the hearing of the appeal and there is now additional time while a fresh hearing is fixed, and also inevitably leads to additional cost being incurred. We are entirely satisfied that in most cases the practice, which is now enshrined in English v Emery Reimbold & Strick Ltd (Practice Note)  1 WLR 2409 as being ordinarily appropriate for the courts, is also appropriate, proper and necessary for employment tribunals. That is the practice which was followed in this case, and is now regularly followed by the Employment Appeal Tribunal in an appropriate case at all stages of our procedures."
Is there jurisdiction?
Section 35(1) of the Employment Tribunals Act 1996 ("the 1996 Act")
"For the purpose of disposing of an appeal, the Appeal Tribunal may—
(a) exercise any of the powers of the body or officer from whom the appeal was brought, or
(b) remit the case to that body or officer."
"We are satisfied, however, particularly given what would appear to us to be a straightforward interpretation of the words "for the purpose of disposing of the appeal", that if, now, further consideration is given to the construction of section 35 of the Employment Appeals Act 1996, any hostility to the idea of a second bite of the cherry, which must have informed the basis of the views of the majority of the Court of Appeal in Tran v Greenwich Vietnam Community Project, would be overtaken and ousted by the contrary conclusion of Lord Phillips of Worth Matravers MR in English v Emery Reimhold & Strick Ltd…".
"24. We are not greatly attracted by the suggestion that a judge who has given inadequate reasons should be invited to have a second bite at the cherry. But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons. Where the judge who has heard the evidence has based a rational decision on it, the successful party will suffer an injustice if that decision is appealed, let alone set aside, simply because the judge has not included in his judgment adequate reasons for his decision. The appellate court will not be in as good a position to substitute its decision, should it decide that this course is viable, while an appeal followed by a rehearing will involve a hideous waste of costs.
25. Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent."
Rule 30 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
30. – (1) A tribunal chairman must give reasons (either oral or written) for any
(a) judgment; or(b) order, if a request for reasons is made before or at the hearing at which the order is made.
(2) Reasons may be given orally at the time of issuing the judgment or order or they may be reserved to be given in writing at a later date. If the reasons are reserved, they shall be signed by the chairman and sent to the parties by the Secretary.
(3) Subject to paragraph (1), written reasons shall only be provided:-
(a) in relation to judgments if requested by one of the parties within the time limit set out in paragraph (5); or
(b) in relation to any judgment or order if requested by the Employment Appeal Tribunal at any time.
(4) When written reasons are provided, the Secretary shall send a copy of the reasons to all parties to the proceedings and record the date on which the reasons were sent. Written reasons shall be signed by the chairman.
(5) A request for written reasons for a judgment must be made by a party either orally at the hearing (if the judgment is issued at a hearing), or in writing within 14 days of the date on which the judgment was sent to the parties. The time limit may be extended by a chairman where he considers it just and equitable to do so."
Jurisdiction outside the rules
General observations on the scope of the power
"(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.
(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive."
"47. The consequences of a failure to comply with a requirement to give reasons depend very much on statutory context and the particular circumstances of the case. The authorities cited by counsel cover a range of different situations. In evaluating them it is also important to bear in mind that there has been, as it seems to me, a tendency in recent years to adopt a stricter approach to the requirement to give reasons and to be readier to quash a decision for failure to give reasons and less ready to allow a deficiency of reasons to be cured by the provision of reasons or supplemental reasons at a later stage.
48…..Although these and the other cases to which I have been referred provide general guidance, they do not lay down a principle that is determinative of the present case. There is no substitute for a careful examination of the particular statutory context and the precise nature of the requirement to state reasons in each case."
"46.6 Tribunal professionalism. In the balance with all the above factors, the appellate tribunal will, in our view, ordinarily consider that, in the absence of clear indications to the contrary, it should be assumed that the tribunal below is capable of a professional approach to dealing with the matter on remission. By professionalism, we mean not only the general competence and integrity of the members as they go about their business, but also their experience and ability in doing that business in accordance with the statutory framework and the guidance of the higher courts."
"Furthermore, although I do not suggest that the Tribunal in the present case would tailor its supplementary reasons to meet the appellant's criticisms, if the practice of permitting supplementary reasons were to be followed generally, the temptation would be created."