COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
APPEAL REF NO: UKEAT042409JO
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division
LORD JUSTICE RIMER
LORD JUSTICE ETHERTON
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Mr Peter Wallington QC and Mr Edward Capewell (instructed by Morgan Cole LLP) for the Respondent
Hearing date : 16 February 2011
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Lord Justice Maurice Kay :
"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."
And, of course, if an original decision is overturned for insufficiency of reasons, there may be no alternative to a lengthy and expensive retrial.
"an invitation [to the ET] from the judge or Registrar [of the EAT] to clarify, supplement or give its written reasons."
I shall have to refer to some of the authorities later.
"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 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."
"where an employment tribunal is alleged to have failed in its judgment to deal with an issue at all, or to have given no reasons or no adequate reasons for a decision."
and to inviting the employment tribunal
"to clarify, supplement or give its written reasons before proceeding to a final determination of the appeal."
"The overriding objective would be frustrated by an unduly restrictive application of the Burns procedure and the jurisdiction explained in English … from time to time employment tribunals will fail to give adequate reasons for an aspect of their decision or fail to deal with a point, not because they had no reasons or had not reached a decision on the point not dealt with, but because in the drafting process the reasons were inadequately articulated or the point was overlooked."
"It will not be appropriate where the inadequacy of reasoning is on its face so fundamental that there is a real risk that supplementary reasons will be reconstructions of proper reasons, rather than the unexpressed actual reasons for the decision … The Employment Appeal Tribunal should always be alive to the danger that an employment tribunal might tailor its response to a request for explanations or further reasons (usually subconsciously rather than deliberately) so as to put the decision in the best possible light."
The request to the ET which was approved by this Court sought further reasons in relation to a number of matters raised in eight of the grounds of appeal.
The complaint about the use of the procedure in this case
"… this Court should be slow to interfere with the way in which the Employment Appeal Tribunal has exercised the jurisdiction in any individual case. It is a discretionary power in the exercise of case management. It is classically the type of decision which should be left to the appeal tribunal to make."
Nevertheless, there will be cases where the EAT will have exceeded the ambit of discretion or will have failed to have regard to a relevant principle – Woodhouse School (paragraph 28) is an example.
Lord Justice Rimer:
Lord Justice Etherton: