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Cite as: [2014] ICR 920, [2014] 3 All ER 709, [2014] IRLR 544, [2014] WLR(D) 178, [2014] 3 WLR 933, [2015] QB 781, [2014] EWCA Civ 449

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		Neutral Citation Number: [2014] EWCA Civ 449
		Case No: A2/2013/0688

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE KEITH
3504219/10, 2650866/10 & 2600708/11

Royal Courts of Justice
Strand, London, WC2A 2LL

16th April 2014

B e f o r e :

LORD JUSTICE LAWS
LORD JUSTICE UNDERHILL
and
SIR TIMOTHY LLOYD
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Between:

	JAFRI	Appellant
	- and -
	LINCOLN COLLEGE	Respondent

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(Transcript of the Handed Down Judgment of
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____________________

Mr J Tindal (instructed by Smith Parnership) for the Appellant
Mr Brochwicz-Lewinski (instructed by Langleys Solicitors) for the Respondent
Hearing dates: 13 February 2014
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HTML VERSION OF JUDGMENT
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LORD JUSTICE LAWS:

INTRODUCTION

This is an appeal, with permission granted by Underhill LJ on 10 June 2013, against the judgment of the Employment Appeal Tribunal (EAT) presided over by Keith J, which on 20 February 2013 dismissed the appellant's appeal against the decision of the Employment Tribunal (ET) on 3 January 2012. The ET had in its turn dismissed the appellant's claims of unfair dismissal and detriment suffered as a result of making protective disclosures. On this appeal we are only concerned with the unfair dismissal claim. The principal issue is whether the appellant should be allowed to rely on what the respondent employer says is a new point, not raised in the ET proceedings.

FACTS

The appellant was a teacher and learning specialist. In 1988 he started working at Sudbury Prison, an open prison in Derbyshire. He was successively employed by the Derbyshire Education Authority and then Manchester College, when the latter assumed responsibility for educational services at the prison. That function was at length taken over by Lincoln College, the present respondent, and the appellant's employment was transferred to Lincoln College on 1 August 2009. His job title was Deputy Learning and Skills Manager.

The Learning and Skills Manager at the prison was Dianna Corbett. On 20 November 2009 she raised a grievance in a letter to the college's Human Resources Officer. She complained about three members of staff, alleging "physical and verbal abuse" by two of them, one of whom was the appellant. On 26 November 2009 the Governor of the gaol, Mr Kan, decided to exclude all three men from the prison owing to the "serious allegations". He indicated that the exclusions would continue until the college's investigations of the complaints had been completed and their outcome discussed with him.

Mr Plummer, the Director of the Offenders Learning and Skills Service, investigated the matter on behalf of the college and wrote a report which was unfavourable to the appellant. There was to be a disciplinary hearing on 29 March 2010, but that was put off at the appellant's request. In May 2010 the appellant raised two grievances himself. One was that Ms Corbett's allegations had been false and the college had impeded his attempts to defend himself properly. The second concerned the recruitment by Ms Corbett of two other members of staff and other matters.

On 31 May 2010 Ms Corbett left the college's employment. She had taken sick leave from 21 January 2010. She never returned to work. In consequence a Vice-Principal of the college, Mr Gillespie, concluded that he had no alternative but to uphold the appellant's grievance that Ms Corbett's allegations had been false. The EAT was to indicate (paragraph 7) that they were "highly sceptical" as to whether that approach was correct.

The appellant applied for Ms Corbett's post. However in an email of 22 July 2010 Mr Kan indicated that the appellant would not be allowed into the prison "under any circumstances". He confirmed that position on 28 July 2010. He had not been told that the appellant's grievance (that Ms Corbett's allegations against him were false) had been upheld.

In the result no formal disciplinary process against the appellant was proceeded with. Mr Kan gave evidence to the ET and made it clear that his position had always been that he would not let the appellant back into the prison until the investigation into his conduct had been completed. The ET was to find that his reference in the 22 July 2010 email, "[not] under any circumstances", meant that he would not re-admit the appellant under any circumstances while the investigation into his behaviour was "pending".

What was called "an informal disciplinary mechanism" was proceeded with and ended with the appellant being given an "informal oral warning". However that was related to his actual or alleged overbearing behaviour towards other members of staff, rather than the Corbett allegation. The appellant's suspension from work was lifted on 16 September 2010 with immediate effect. But Governor Kan would not have him back at Sudbury prison, though he knew (following a further grievance raised by the appellant on 19 September 2010) that the appellant was saying that the Corbett allegations had been found by the college to be false and unfounded.

The college attempted to deploy the appellant at locations other than Sudbury Prison, as Mr Plummer stated in an email to Ms Hilton (Head of Learning Services at Sudbury) of 5 October 2010, in which he asked for an "over-arching statement of the concerns held by HMP Sudbury over his return". A reply on 7 October showed that Mr Kan's position was unchanged. It proved impossible to relocate the appellant. At length on 6 December 2010 Mr Deane, another Vice-Principal of the college, told the appellant that he was to be dismissed. That was followed by a letter to the appellant stating that Mr Kan's refusal to permit his return to the prison was "beyond [the college's] control", and the college had "made every effort to secure alternative employment for [him] but to no avail".

THE EMPLOYMENT TRIBUNAL'S CONCLUSION

The ET found that the appellant had been excluded from Sudbury because of Ms Corbett's allegations; that the college had made every effort to persuade Mr Kan to lift his exclusion from the prison; and that the college had sought to find him other employment, but he was only interested in being cleared of the allegations and returning to Sudbury. Those matters amounted to "some other substantial reason" for his dismissal and justified it.

Paragraph 5 contains the reasons leading to the ET's conclusion that the dismissal was fair. In light of one of the issues in the case I should set out paragraph 5.2.1:

"The complaint of Dianna Corbett was genuinely made. Having heard her evidence and that of Rachel Newman we are satisfied that there had been difficulties about the claimant's attitude, particularly to women in authority. That Dianna Corbett had indeed spoken to him at length about this without success although, as she described, there had been some small improvement for a short period of time before things worsened again. She did raise her complaint against 3 male colleagues with her employer and it was not at her behest that Mr Jafri was excluded."

Finally at paragraph 5.2.6 the ET stated:

"Of course the result of this is that to a certain extent there is some injustice to Mr Jafri and that is acknowledged by the Tribunal and I think it is acknowledged by everyone that there is a certain element of injustice to Mr Jafri in this respect. In our view that injustice has to be balanced against the practicalities of what his employers could do. In our view his employers did everything they could to prevent any injustice to him and indeed in this case their dismissal of him fell well within the band of reasonable responses."

THE EMPLOYMENT APPEAL TRIBUNAL'S CONCLUSION

There were two grounds of appeal before the EAT. The first was that the ET had failed to consider whether the college had taken into account, in deciding to dismiss the appellant, the injustice which his dismissal would inflict upon him and the effect of that injustice. The second consists in a series of criticisms of the ET's findings on the way to its conclusion at paragraph 5.2.6 that the college "did everything [it] could to prevent any injustice to [the appellant]".

The EAT rejected the first ground. They held that the ET had indeed taken account of the injustice to the appellant occasioned by his dismissal and its effects, and were justified in doing so (EAT paragraphs 22 – 24). As regards the second ground, the EAT accepted that the ET had made three errors of fact. The first (EAT paragraph 26) was that at paragraph 5.2.4 the ET had proceeded (while dealing with the college's discussion with Mr Kan of the appellant's exclusion from the prison) on the footing that the "informal disciplinary mechanism" which was undertaken related to the Corbett allegations, whereas as I have indicated it was in fact concerned with his actual or alleged overbearing behaviour towards other members of staff. The second error (EAT paragraph 31) related to a finding by the ET at paragraph 3.38 of its reasons to the effect that Mr Plummer had been unable to uphold any of the contentions put forward by the appellant in his second grievance of May 2010, whereas certain elements, concerning the recruitment by Ms Corbett of two other members of staff and a timetable revision, had been upheld. The third (EAT paragraph 33) was that the ET at paragraph 3.35 had misreported Mr Plummer's email of 5 October 2010, by stating that Mr Plummer had asked how the fact that "the investigation [into the Corbett allegations] was not going to be continued… would affect [the appellant's exclusion". But Mr Plummer had asked nothing of the sort. He had asked for an "over-arching statement of [the prison's] concerns" (about his return).

The EAT considered, however, that none of these errors vitiated the ET's conclusion that the college had done everything it could to prevent injustice to the appellant. The first error was something of a side issue, the real criticism of the tribunal being that it "failed to consider whether the college really had pulled out all the stops to persuade Mr Kan to let [the appellant] return to the prison" (EAT paragraph 26). The second error was neither here nor there – the appellant's second grievance had nothing to do with the issues the ET had to decide, unless an appreciation that parts of it had been upheld might have affected their assessment of the injustice inherent in the appellant's dismissal, which it would not (EAT paragraph 30). And on all the facts, the third error (relating to the email of 5 October 2010) did not affect the ET's conclusion that the college did all it could to persuade Mr Kan to re-admit the appellant to the prison: EAT paragraph 34.

However these three errors were not the whole of the second ground of appeal before the EAT. Mr Tindal in the course of argument directed severe criticism at paragraph 5.2.1 of the ET decision, which I have set out. As the EAT stated (paragraph 28):

"The criticism of the tribunal is that this was an area of fact-finding into which it should not have strayed. The college had not reached any concluded view itself about Ms Corbett's allegations, and it was therefore wholly inappropriate for the tribunal to have done so."

The EAT agreed (paragraph 29). However:

"30. The critical question is whether the tribunal's error in making findings on this topic infected its ultimate conclusion that Mr Jafri had not been unfairly dismissed. In other words, would the tribunal's assessment of whether the college had taken into account the extent to which Mr Jafri's dismissal had been an injustice have been any different if it had not considered for itself whether Ms Corbett's allegations were true? We do not think that it would. Once the tribunal had found that the college had tried to persuade Mr Kan to permit Mr Jafri to return to the prison, but that his stance had remained the same, and that it had done what it could to redeploy Mr Jafri elsewhere, it is difficult to see what other conclusion the tribunal could have thought might have been open to the college."

The second ground of appeal also included a perversity argument. There is plainly nothing in that, as the EAT found (paragraph 36).

THE APPELLANT'S CASE IN THIS COURT

The first ground in this court, articulated in Mr Tindal's Grounds of Appeal of 10 March 2013 at paragraphs 9 and 10, is that the EAT decided the case for itself when it should have remitted it for a further ET hearing once it had held, as it did, that the ET had perpetrated an error or errors of law. The second ground (paragraphs 11 – 14) is that the EAT applied the wrong test upon the question whether the case should be remitted. In relation to the ET's error in making inappropriate findings of fact (ET paragraph 5.2.1) they asked themselves whether the EAT's assessment of the injustice to the appellant would have been any different but for the error: see EAT paragraph 30, which I have set out. The errors of fact which the EAT acknowledged had been made by the ET were held to be immaterial to its decision: it was "inevitable" that the ET's conclusion would have been the same.

THE TEST FOR REMITTAL

Mr Tindal submits that this approach was wrong as a matter of law. In Dobie v Burns [1984] IRLR 329 Lord Donaldson MR said at paragraph 18:

"Once [the EAT] detects that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of [the ET] is plainly wrong, but whether it is plainly and unarguably right notwithstanding the misdirection. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for the appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact."

Mr Tindal submits also that the EAT has compounded its erroneous approach to the test for remittal by, in effect, making findings of fact for itself.

In his skeleton argument Mr Tindal developed these submissions. He acknowledged that the "plainly and unarguably right" test has been qualified in later cases. Thus in Hellyer Bros. Ltd v McLeod [1987] ICR 526 at 547D Slade LJ cited with approval what he described as an "implicit qualification" described by Waite J in the same case as follows:

"If we [sc. the EAT] are satisfied that a conclusion reached as a result of a misdirection is plainly and unarguably wrong upon facts found by the industrial tribunal and those facts do not require further amplification or reinvestigation, then we are entitled and bound to substitute our own conclusion as to what those findings require in law."

Maurice Kay LJ approved this approach in MoD v Cartner [2011] EWCA Civ 1516, paragraph 22. Then in Willow Oak Developments v Silverwood [2006] IRLR 607 at paragraph 31 Buxton LJ said this:

"The EAT accepted Miss Mountfield's submission that remission could only be withheld if it was clear what the result would be on such remission: see O'Kelly v Trust House Forte [1984] QB 90, cited by the EAT at its §35. In particular, the EAT cannot add to the findings or conclusions of the ET any view of its own, not to be found within the original ET decision, since so to do would be to usurp the position of the ET as an industrial jury."

I must confess with great respect to some difficulty with the "plainly and unarguably right" test elaborated in Dobie. It is not the task of the EAT to decide what result is "right" on the merits. That decision is for the ET, the industrial jury. The EAT's function is (and is only) to see that the ET's decisions are lawfully made. If therefore the EAT detects a legal error by the ET, it must send the case back unless (a) it concludes that the error cannot have affected the result, for in that case the error will have been immaterial and the result as lawful as if it had not been made; or (b) without the error the result would have been different, but the EAT is able to conclude what it must have been. In neither case is the EAT to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the ET, supplemented (if at all) only by undisputed or indisputable facts. Otherwise, there must be a remittal.

This twin approach is consonant with Hellyer Bros. Ltd v McLeod and Willow Oak Developments v Silverwood, and with other cases cited by Mr Tindal: Buckland v Bournemouth University [2010] 4 AER 186 ("no more evidence was required"), Haq v Audit Commission [2013] EWCA Civ 1621 ("the EAT worked on the basis of the facts as found by the ET") and Sud v Ealing LBC [2013] WLR(D) 320 ("an additional finding… would not affect the outcome…). The same essential theme is to be found in authorities cited by Mr Brochwicz-Lewinski for the respondent: Devon & Somerset Fire and Rescue Service v Tilke [2010] EWCA Civ 1402 ("we already know the facts") and Fuller v London Borough of Brent [2011] IRLR 414 ("it was not inevitable that the fresh hearing would result in a finding of fair dismissal").

This view of the learning simply reflects the different roles of the ET and the EAT: industrial jury and legal supervisor. It sits also with the approach of the High Court in other statutory appeals on law only, and in judicial review, to the question what relief should be granted when it finds that a subordinate decision is flawed by error of law. I venture to think that Lord Donaldson in Dobie, despite his use of the phrase "plainly and unarguably right" (which has certainly been applied in some of the other cases, including Sud), had situation (a) in mind. Moreover his judgment in O'Kelly v Trust House Forte plc [1984] QB 90, 126A-B, articulates the conventional position as regards the relief to be granted in an appeal on law only:

"The [EAT] can correct errors of law and substitute its own decision in so far as the [ET] must, but for the error of law, have reached such a decision. But if it is an open question how the [ET] would have decided the matter if it had directed itself correctly, the [EAT] can only remit the case for further consideration."

In this case the EAT in effect applied the approach I have outlined at (a). It follows, if my Lords agree with the approach I have taken, that the second pleaded ground of appeal, that the EAT applied the wrong test upon the question whether the case should be remitted, must fail.

SHOULD THE EAT HAVE REMITTED THE CASE?

As for the first ground, the question must be whether the EAT was right to hold that situation (a) applied. Subject to one point only, the court can in my judgment be confident, without adding "to the findings or conclusions of the ET any view of its own, not to be found within the original ET decision" (Willow Oak) that the ET were bound to find (a) that the college had taken full account of the injustice to the appellant, (b) that they did their best to persuade Mr Kan to re-admit him to Sudbury gaol and (c) that they made all proper efforts to relocate him. Nothing in the appellant's criticisms of the EAT's approach to the facts (such as his strictures upon the EAT's treatment at paragraph 13 of two emails not referred to by the ET – they were relied on before the EAT by the appellant himself), nor the ET's own errors, is in my judgment capable of shifting this conclusion. It is not in those circumstances necessary to refer to the authorities dealing with injustice to an employee dismissed because of the act of a third party: notably Dobie (at paragraph 14) and the decision of my Lord Underhill LJ in Henderson v Connect Ltd [2010] IRLR 466 (paragraphs 16 and 21).

The single point which might make the difference is flagged in the Grounds of Appeal at paragraphs 7 and 9.2, and figures large in Mr Tindal's principal skeleton argument. It is that the ET ought to have considered and decided whether the respondent should have pursued the disciplinary process to a conclusion, or at least considered whether it was practicable to do so. At paragraph 39 of Mr Tindal's skeleton argument this is described as "the central factual hole at the heart of this case".

Mr Tindal asks the rhetorical question: why were Ms Corbett's allegations not simply adjudicated? If exonerated, the appellant could have returned to work at the prison. If not, any dismissal would at least have been for established misconduct rather than unproven accusations. The prison had in effect (through the Governor) refused to lift the appellant's exclusion until the allegations had been adjudicated by the respondent, and until it could be satisfied that it was appropriate for the appellant to return to the prison: what Mr Kan meant by "under any circumstances" in his email of 22 July 2010 was that the appellant would not be allowed back "under any circumstances whilst the investigation into his behaviour was pending" (ET paragraph 3.30). For his part the appellant "was only interested in being exonerated entirely from the allegations made by Diana Corbett and being able to return to Sudbury" (ET paragraph 5.2.5). Had the ET at least investigated the practicality of seeing the disciplinary process through to a conclusion, they might have avoided the very injustice which they acknowledged at paragraph 5.2.6 of their judgment. As Mr Brochwicz-Lewinski himself observes in his skeleton (paragraphs 10-11): "If an examination of the evidence had led to the conclusion that the appellant had not acted as alleged and should be exonerated, the decision could be revisited. However there was nothing to suggest that, in the absence of such a process occurring, the decision would be altered."

It is plain that no evidence about the distinct prospect of pursuing the Corbett allegations by means of formal disciplinary proceedings was adduced before or considered by the ET. The ET made no findings about such a possibility. Had it been gone into, it is by no means clear what the outcome would have been; the ET might or might not have been dissuaded from the conclusion they in fact reached at paragraph 5.2.6: "his employers did everything they could to prevent any injustice to him…". Much would surely have depended on Ms Corbett. She had fallen ill and left the respondent's employ. She came to testify before the ET; but she might or might not have been willing, or available, to give evidence in a disciplinary enquiry had that been proceeded with at an earlier stage. As Mr Brochwicz-Lewinski submitted (skeleton paragraph 46) "[t]here are multiple factual reasons why such a process might not have been possible or appropriate, not least the unavailability of the complainant and the fairness/validity of a process held in her absence".

It is therefore clear that were we to hold that this point should now be available to the appellant, the case would have to be remitted to the ET for further evidence to be taken (so far as was practicable) and further facts to be found. But Mr Brochwicz-Lewinski submits that the point is a new one, and on well established authority the appellant should not now be allowed to take it.

A NEW POINT?

The law in this area is much travelled ground, and I do not propose to add to the considerable body of learning on the subject. The broad principle is that there is a discretion in the EAT to allow a new point to be taken, but it is to be exercised only in exceptional circumstances. In Secretary of State for Health v Rance [2007] IRLR 665 HHJ McMullen QC sitting in the EAT reviewed the authorities and gave examples, derived from the cases, of circumstances in which the discretion might and might not fall to be exercised. The former included such instances as deception practised by the other party which prevented the point being taken below; where the issue is a discrete one of pure law requiring no further factual enquiry; where the point of law is one of particular public importance; where there would be a "glaring injustice" in refusing to allow an unrepresented party to rely on evidence which could have been adduced at the ET. The latter included instances where what is relied upon is a chance of establishing lack of jurisdiction by calling fresh evidence; where the point was not taken below as a result of a tactical decision by a representative or a party; where the point was missed through an advocate's incompetence.

As regards that last example, it is right to say that the appellant acted in person before the ET, and at the hearing before us Mr Brochwicz-Lewinski was prepared to accept that a "slightly more relaxed approach" might properly be taken to the introduction of a new point where that was the case.

Mr Tindal submits that the contention that the Corbett allegations should have been pursued to a formal outcome by the respondent was raised both in the ET and in the EAT. In short, it was not a new point at all. The critical question must be how far the "new point" was raised before the ET; and I will come to that. But it is convenient first to consider whether it played any part in the case before the EAT. As will be apparent, it has not figured in what I have so far said about the EAT proceedings. The Grounds of Appeal to the EAT (settled by Mr Tindal) included this:

"Neither the College nor the Tribunal referred expressly or implicitly to the following factors –

21.4 the failure to resolve the disciplinary allegations properly was beyond [the appellant's] control – Ms Corbett had left and the College had decided in effect not to pursue them rather than inviting her to attend a hearing or specifically and formally dismissing them based upon Mr Gillespie's existing findings".

But this does not encapsulate the way in which Mr Tindal now puts his case. There is no assertion that the ET should have held that the respondent ought to have pursued the disciplinary process to a finish, or at least gone into the practicality of doing so. And it seems clear that the EAT did not apprehend that such a complaint was before them. As I have shown, they were certainly alive to "the real criticism of the tribunal… that this was a case of patent injustice to Mr Jafri, and the tribunal failed to consider whether the College had really pulled out all the stops to persuade Mr Kan to let Mr Jafri return to the prison…" (EAT paragraph 26). But nowhere do they take the next step, and consider whether the ET should have investigated the possibility that a conclusion to the disciplinary process might have been the very means of persuading Mr Kan to that effect.

But whether or not the point was put to the EAT, the real question, as I have said, is how far it was raised before the ET; Mr Tindal insisted that had been done. The question is critical not merely because of the constraints which authority makes clear restrict the circumstances in which a new point may properly be taken. It will also determine a logically prior consideration – whether there is here a point of law at all. I have already noted the elementary legal fact that the EAT (and in turn this court) only has jurisdiction to entertain appeals where the complaint is one of error of law. But the rights and wrongs of proceeding with the disciplinary process against the appellant, in the events which had happened, raise issues of fact and judgment rather than law. There would only be a legal error constituted by the ET's failure to consider it if a reasonable tribunal was bound to do so – either because the issue had been put to them as part of the appellant's case, or perhaps because it was obviously relevant to the question whether the appellant had been unfairly dismissed (compare, though it is not on all fours, Langston v Cranfield University [1998] IRLR 172; and in the very different field of immigration appeals, the requirement that immigration appeal tribunals consider an "obvious" point of ECHR jurisprudence even if not raised before them: Robinson [1998] QB 929).

Was it contended before the ET that they consider and decide whether the respondent ought to have pursued the disciplinary process to a conclusion, or at least considered whether it was practicable to do so?

Mr Tindal has helpfully provided a further skeleton argument, dated 10 February 2014, which specifically addresses the "new point" issue. At paragraph 21 there are references to the appellant's grievance of 18 May 2010 and his appeal against dismissal on 6 December 2010, complaining of continuing "victimisation" by the college, consisting (in effect) of its failure or alleged failure to "challenge" (18 May 2010) the Corbett allegations. But those earlier formulations cannot of themselves, in my judgment, throw any determinative light on how the ET should later have approached its own task.

However Mr Tindal then cites his client's claim form before the ET (ET1), paragraphs 3, 6, 14 and 16: "There were major failings in the investigative process, following Diana Corbett's allegations against me… These allegations would have been swiftly dismissed had the investigating team taken care to speak to Rachel Newman or the senior management team at the Manchester College… The College is continuing to victimise me by allowing my good name and present and future job prospects to be damaged by its failure to challenge third parties in their assumption and belief that I stand guilty of the original charges levelled against me by Diana Corbett… The College is continuing to victimise me by its practice of not observing procedural fairness…".

These citations are followed in the further skeleton (paragraph 22.2-6) by quotations from the appellant's witness statement before the ET, from his cross-examination of Mr Deane, and from his written submissions to the ET. I will not set out all the passages. The themes of the appellant's complaints about the investigative process, which is heavily criticised, are revisited. There are bitter strictures about Ms Corbett's "false and unfounded" allegations. It is said that Rachel Newman and others should have been spoken to. Ms Corbett's unproven accusations should not have been released to third parties.

The appellant plainly felt that he had been left high and dry, his good name sullied by false claims. Much of his fire was directed to the investigative (rather than the disciplinary) process. All this is reflected in the ET's narrative. But nowhere is there to be found a distinct case presented to the ET to the effect that the respondent employers should have pursued the disciplinary process as such to a conclusion, or at least considered whether it was practicable to do so; or any invitation to the ET so to find. Plainly it did not occur to the ET that such a distinct case was before them and that they ought to adjudicate upon it. In my judgment it cannot be said that a reasonable employment tribunal was bound to take this argument on board for itself. It is indeed a new case within the contemplation of the authorities on the subject, and I do not consider there are any exceptional circumstances (whether or not within Judge McMullen's catalogue in Rance) which would justify the appellant's being allowed to run it now. In short, the assertion of this new point discloses no arguable error of law on the part of the ET.

I do not consider in all the circumstances that the fact that the appellant represented himself before the ET can make the difference. The reality is that a remittal to the ET would be an invitation, not to reach a fresh decision on a correct understanding of the law after an earlier error, but to have the case substantially relitigated.

I would dismiss the appeal.

LORD JUSTICE UNDERHILL:

I agree that this appeal must be dismissed: the only point on which it is potentially arguable that the ET erred was one which, as Laws LJ has demonstrated, was not argued before it. I wish to add a few words only on the question reviewed by Laws LJ at paras. 19-23 of his judgment.

When I gave permission to appeal in this case I noted that in one or two recent cases this Court had deprecated a too ready resort to remittal by the EAT in a case where there was no need for further fact-finding. In Buckland v Bournemouth University [2010] ICR 908 Jacob LJ said, at paras. 57-58 (p. 920 C-E):

"57 Finally a word about the appeal tribunal's "academic" decision that if it had upheld the finding of constructive dismissal it would have remitted the question of fairness to the employment tribunal. With respect I cannot see why. Even though the employment tribunal had not made a finding about this, no more evidence was required. So the appeal tribunal could have decided the point itself.

58 Quite generally, sending a case back to a tribunal or court below should be used only as a last resort. "Ping pong", as some call it, generally serves litigants badly—prolonging things and increasing costs."

Carnwath LJ, at para. 50 (p. 919 C-D), agreed about "the desirability of avoiding unnecessary remitter to the tribunal when the EAT is in as good a position to decide the matter itself". Those observations, albeit that they were obiter, attracted a good deal of attention among practitioners; they were relied on, for example, in Haq v Audit Commission [2013] EWCA Civ 1621, [2013] IRLR 213 – see para. 149 (p. 218) – though in fact that was a case where the majority held that only one result was possible on the facts found. It seemed to me that there was, to put it no higher, a tension between the approach to remittal (or remission or remitter – usage seems to be fluid in this area) enunciated in the older authorities and that recommended by Jacob and Carnwath LJJ ; and I suggested that the question merited reconsideration.

The full review of the authorities conducted by counsel before us satisfies me that the law is as summarised by Laws LJ at para. 21. I initially thought that it might be possible to draw a distinction between cases involving issues which are peculiarly within the province of the ET, such as the fairness of a dismissal or the justification of an act of indirect discrimination, and other issues such as, say, interlocutory decisions or questions going to the quantum of compensation. But a similar submission was authoritatively rejected by this Court in Bennett v London Borough of Southwark [2002] EWCA Civ 223, [2002] ICR 881, a case involving a striking-out. Sedley LJ said (at p. 839 B-D):

"32 [Counsel] submits that the principle is confined to matters of judgment, such as the fairness of a dismissal, on which the first instance tribunal cannot be second-guessed, and that it does not embrace cases where the appeal tribunal, once it has got the law straight, is as well placed as the first instance tribunal to evaluate the facts that have been found. The argument is attractive, but it is foreclosed by the clear and comprehensive construction of the provision in the earlier decisions of this court.

33 Once it is established that striking out was not a foregone conclusion, it follows on authority that it was not open to the appeal tribunal to substitute its own decision for that of the [employment] tribunal, any more than it was possible in the circumstances to uphold it."

It must follow, pace Carnwath LJ, that the fact that in a given case the EAT "is in as good a position [as the ET] to decide the matter itself" is not sufficient to justify it in taking that course. If, once the ET's error of law is corrected, more than one outcome is possible, the authorities are clear that it must be left to the ET to decide what that outcome should be, however well-placed the EAT may be to take the decision itself.

I am bound to say that I reach that conclusion with regret. As Jacobs and Carnwath LJJ pointed out in Buckland, to remit an issue which the EAT is as well placed as the ET to decide exposes the parties to unnecessary cost and delay. Remittal is not necessary in order to ensure that the decision is taken by the expert tribunal, since the EAT is itself such a tribunal: there is here a difference from the position on judicial review. Also, references to the "industrial jury" have less force now, when so many decisions are taken by an employment judge sitting alone. I should have preferred a more flexible approach, under which the EAT had a discretion, in a case where it was genuinely in as good a position as the ET to make the decision in question, whether to remit it nevertheless or to decide it for itself. But it is clear that that is not the law.

The disadvantages of this ruling can be mitigated to some extent if the EAT always considers carefully whether the case is indeed one where more than one answer is reasonably possible: there are plenty of examples in the authorities of a robust view on that question being taken. Further, even where more than one outcome is indeed possible, there is in my view no reason why the EAT cannot still decide the issue if the parties agree; and in an appropriate case they should be strongly encouraged to do so. It is important to appreciate that the requirement to remit enunciated by the authorities referred to by Laws LJ is not based on a formal problem about jurisdiction. Section 35(1) of the Employment Tribunals Act 1996 reads:

"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."

A determination by the EAT of an issue in respect of which the ET had erred in law would plainly be made "for the purpose of disposing of the appeal". Rather, the issue concerns, as Sedley LJ expressed it in Bennett (see para. 30, at p. 892E), the correct use of that power. The point made in the authorities is that it is wrong in principle for the EAT as a reviewing tribunal to make a decision which falls within the scope of the fact-finding (and that includes fact-assessing and discretion-exercising) tribunal. But there can be no such objection where the parties consent.

SIR TIMOTHY LLOYD:

I agree that the appeal should be dismissed for the reasons given by Laws LJ, and I also agree with the additional observations of Underhill LJ.