Jersey Unreported Judgments

Employment - reasons regarding jurisdiction of the Court in relation to appeal against decision of Jersey Employment Discrimination Tribunal.

[2015]JRC133

Royal Court

(Samedi)

22 June 2015

Before     :		W. J. Bailhache, Esq., Bailiff, sitting alone.
Between	Mark Wood		Appellant
And	JT (Jersey) Limited		Respondent

Advocate H. J. Heath for the Appellant.

Advocate W. Austin-Vautier for the Respondent.

judgment

the bailiff:

1.        The Appellant brought a claim against the Respondent before the Jersey Employment and Discrimination Tribunal alleging that he had been unfairly dismissed.  The claim was heard before the Deputy Chairman Advocate M J Preston, sitting with panel members Mr Stuart Mourant and Mr John Noel, on 23^rd and 24^th September and 7^th November, 2014, and the decision of the Tribunal rejecting the Appellant's claim was communicated in a written judgment dated 23^rd February, 2015.  That judgment runs to fifteen pages. 

2.        The Appellant has appealed by representation presented to the Court on 20^th March which adjourned further consideration for a date to be fixed and ordered the Respondent to be served.  The parties have agreed a date for the substantive hearing of the appeal on Tuesday 4^th August. 

3.        The representation sets out the Appellant's grounds of appeal. There are essentially four grounds - it is asserted that the Tribunal mis-applied or mis-directed itself as to the law on what constitutes redundancy; it is asserted that the Tribunal erred in law by mis-applying the case of Polkey v A E Dayton Services Limited [1987] 3 All ER; it is asserted that the Tribunal acted perversely in ignoring relevant evidence and not adjudicating upon relevant facts; and finally it is asserted that the Tribunal's decision is not compliant with the principles set out in Meek v City of Birmingham District Council [1987] IRLR 250CA. 

4.        The Respondent has issued a summons to the Representor:-

"to show cause why the following order should not be made:-

(1) that the Deputy Chairman of the Employment and Discrimination Tribunal (the "Deputy Chairman") provides such further reasons as he thinks fit in connection with the following aspects of his decision in Wood v JT (Jersey) Limited [1212 - 200/13] dated 23rd February 2015 (the "Decision");

(a) Regarding ground 1 of the Representor's notice of appeal as particularised in the representation dated 16th March 2015 (the "Representation");

(i) What were the reasons for not referring to English and/or Scottish authorities in the Tribunal's assessment as to whether the Representor was made redundant?

(ii) What were the reasons for referring to a finding of an absence of bad faith on the part of the Respondent (at paragraph 47 of the decision) in connection with the determination that the reason for Mr Wood's dismissal was not redundancy.

(b) Regarding ground 2, as particularised in the Representation, explain the reasons for the comment made at paragraph 43 of the Decision in connection with the application of Polkey v A E Dayton Services Limited [1987] 3 All ER to the facts of the case

(c) Regarding ground 4, as particularised in the Representation;

(i) What were the Deputy Chairman's reasons for treating the aspects of the Representor's evidence listed at paragraph 28(A)(ii)(f) to the Representation as he did?

(ii) What were the Deputy Chairman's reasons for treating the aspects of the Representor's evidence listed at paragraph 29(A)(ii)(c) to the Representation as he did?

(iii) What were the Deputy Chairman's reasons for treating the aspects of the Representor's evidence listed at paragraph 30(A)(ii)(f) to the Representation as he did?

(d) Regarding ground 4, as particularised in the Representation, what were the Deputy Chairman's reasons for structuring the Decision as he did (to include the section headed "Discussion")?

(e) ..."

5.        The summons is dated 1^st June and was heard on 12^th June.  Two issues were raised in the skeleton arguments.  The first is whether the Court had jurisdiction to make an order of this kind.  The second was whether, if the Court did have that jurisdiction, it ought to be exercised.  I gave a decision on 12^th June to the effect that the application was refused, with reasons to follow, and this judgment contains those reasons. 

Jurisdiction

6.        The practice of the Employment Appeal Tribunal referring a decision back to the Employment Tribunal for further reasons is not at all uncommon in the United Kingdom.  The lawfulness of that practice was considered by the Court of Appeal in Barke v Seetec Business Technology Centre Limited [2005] EWCA Civ 578, where the Court referred to it as the "Burns procedure" following a decision of the Employment Appeal Tribunal in Burns v Royal Mail Group [2004] ICR 1103.  The procedure has been incorporated in the Employment Appeal Tribunal Practice Direction 2004.  It involves the Employment Appeal Tribunal, in a case 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, inviting the Employment Tribunal to clarify, supplement or give its written reasons before proceeding to a final determination of the appeal.  As is mentioned by Dyson LJ in his introduction in the Barke case, the Burns procedure is to be distinguished from the practice of remitting a case for reconsideration by an employment tribunal after the final determination of the appeal. 

7.        The decision of the Court of Appeal in Barke is fully reasoned as one would expect and would repay close attention in any case where the exercise of a discretion in the current circumstances might arise.  It is sufficient for the present purposes to indicate that the Court of Appeal concluded that there was power to invite further reasons from the Employment Tribunal pursuant to Rule 30 of Schedule 1 to the Employment Tribunals' (Constitution and Rules of Procedure) Regulations 2004, but even if that were incorrect and there were no power to request further reasons under that rule, there would be an inherent jurisdiction in the Employment Appeal Tribunal to invite the Employment Tribunal to clarify, supplement or give its written reasons.  The basis for that conclusion was that there was no prohibition in the statute or rules against such a request, and that the Employment Tribunal was not functus officio not least because the Tribunal, like a court, had jurisdiction to respond to a request from an appeal court for amplification or clarification of its reasons following the decision in English v Emery Reimbold & Strick Limited and other appeals [2002] EWCA Civ 605. 

8.        The Court of Appeal placed a high store on the requirement to manage litigation efficiently and in accordance with the over-riding objective of dealing with cases justly, as far as practicable saving expense and ensuring that cases are dealt with expeditiously.  It was noted that if the Burns procedure is adopted only rarely where lack of reasons forms the basis of one or more of the grounds of appeal, then on the assumption that the reasons are inadequate, the appeal would have to proceed to a full hearing at which the appeal would be allowed and the case remitted for reconsideration.  This would commit the parties to the cost and delay of a full hearing before the Employment Appeal Tribunal which might otherwise be unnecessary, as well as committing the parties then to the cost and delay of the reconsideration by the Employment Tribunal, which would be many months after the original decision.  On this basis, it was considered in the Court of Appeal in Barke that the Burns procedure might be adopted frequently.  It is also to be noted that the Court of Appeal pointed out the dangers of following this course:-

"47. But there are also dangers in remitting a decision or part of a decision to the original tribunal on a final disposal of an appeal. There is the possibility (however unlikely) that the Tribunal will cynically reach the same decision as on the first occasion, approaching the case with a closed mind, and providing apparently sound reasons for its decision, thereby making up for the shortcomings in its earlier decision. More likely, there is the danger that the Tribunal will subconsciously reach the same decision as on the first occasion and, therefore approach its task with a closed mind. These dangers undoubtedly exist. But the Employment Appeal Tribunal rightly remits cases or particular issues in cases to the original tribunal in order to save time and avoid the expense of a remission to a new tribunal. The considerations enumerated by Burton J in Sinclair Roche are of relevance here.  The Employment Appeal Tribunal must in each case make a judgment  of how serious the dangers are. They have to weigh the danger that the Tribunal will tailor its answers to the request for further reasons against the benefit of having those reasons. It is important to keep in mind that the purpose of the Burns procedure is to elicit historical facts from the Tribunal: what were the reasons for this finding? Why is there no finding on that issue? Why is there no reference to that apparently important piece of evidence? And so on. There should not be much scope for a professional and honest tribunal, unwittingly or otherwise, to give misleading answers to such questions. It seems to us that there is a greater danger that, on a remission to the original tribunal after a successful appeal, the Tribunal will subconsciously wish to reach the same conclusion as on the first occasion.  And yet, the Employment Appeal Tribunal routinely remits cases or issues to the original tribunal.  The same approach is adopted by the Court of Appeal. The underlying justification for this is that judges and members of employment tribunals are trusted for their professionalism and integrity and, in many cases, it is better to remit to the original court or tribunal.

48. We would, therefore, uphold the Burns procedure. It is of considerable benefit for the reasons identified by Burton J ..."

9.        It is important to recognise from that analysis that the Employment Appeal Tribunal had jurisdiction to make a request of this kind on alternative bases - the first pursuant to the Rules (and there is no comparable Rule in this jurisdiction) and the second pursuant to its inherent jurisdiction for managing litigation efficiently. 

10.      It was not really contended before me by Advocate Heath that there was no inherent jurisdiction in the Royal Court to make a similar request of the Tribunal in Jersey.  She submitted that she was "inclined to agree that the Court had an inherent jurisdiction".  Nonetheless, she submitted that the discretion should not be exercised. 

11.      The first question for consideration is whether the Tribunal is functus officio, and would therefore be prevented from responding to the invitation from the Royal Court in any event.  In my judgment it is not functus.  This is not a case where the Tribunal would be asked to reopen the matter and substitute a different decision in place of the one which has been recorded and delivered.  It would not be asked to alter its decision, but merely to review it for the purposes of supplementing the reasons which it had recorded.  In JEP v Al Thani [2002] JLR 542 at paragraph 9, Bailhache, Bailiff said this:-

"A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even where a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected."

12.      In this case, the order of the Tribunal was perfected on 23^rd February when the decision was handed down in the sense that it was not open at that stage for the Tribunal to change that decision.  It was not functus to the extent that it could have corrected clerical errors.  In my judgment it was also not functus for the purpose of responding to any request from a supervising court such as the Royal Court, which does have an inherent jurisdiction to control the process of inferior tribunals, and accordingly the Employment Tribunal could respond to a request to give further reasons.  In my judgment therefore not only is the Employment Tribunal not functus officio for that limited purpose, but also the Royal Court has an inherent jurisdiction to make a request of the kind to request it to provide them.  

13.      Article 94 of the Employment (Jersey) Law 2003 confers on the Royal Court a jurisdiction to hear an appeal on a point of law from a decision of the Employment Tribunal.  The Court is given power to make rules governing the procedure to be adopted on such appeals, although it has not as yet exercised that power.  A similar position arose in relation to some administrative appeals in the 1950s, before the adoption of the Royal Court Rules which contain provision for administrative appeals.  In those days, the Royal Court, faced with a notice of appeal, would direct the Committee pursuant to its inherent jurisdiction, to deliver a statement of case.  It was necessary that it could give such directions in order that the appeal could properly be dealt with.  The extent of the analogy is limited, because of course in such appeals the Committee was a respondent to the appeal, whereas here the Tribunal is not a party to the appeal at all.  Indeed, the Tribunal has not taken an administrative decision, and Part 15 of the Royal Court Rules does not apply, notwithstanding Advocate Austin-Vautier's ingenious submissions that directly or indirectly it could be so applied.  The key point is that as the Royal Court is conferred jurisdiction to deal with appeals from the Tribunal under Article 94 of the Employment Law, it has all its inherent jurisdiction to ensure that both the appeal and the underlying dispute are dealt with efficiently and proportionately. 

14.      The summons issued by the Respondent suggests that the Royal Court should order the Deputy Chairman of the Tribunal to provide further reasons.  I do not think that is appropriate, and indeed does not show sufficient respect for the Tribunal.  Apart from anything else, it would cause a potential problem if the Chairman of the Tribunal in a particular case was for whatever reason unable to provide further reasons.  However, I am quite satisfied that, although there has been no significant argument before me, I can properly adopt the principles set out in Barke v Seetec Technology Centre Limited to conclude that the Royal Court has an inherent jurisdiction to request the Chairman or Deputy Chairman of the Tribunal to provide further reasons, if the Royal Court thinks it is appropriate to do so. 

The exercise of discretion in this case

15.      Although I think that I do have an inherent jurisdiction to request the Employment Tribunal to respond to questions and expand upon the reasons which have been given, I am not prepared to do so in this case.  There are several reasons for this. 

16.      The first reason is that it seems to me to be almost inevitable that if I were to make such a request, the date that has been fixed for the appeal in August will be vacated.  I asked Advocate Austin-Vautier to describe to me the process which he envisaged if I were to make the request.  It is not unfair to say he was perhaps slightly unwilling to go into much detail, indicating that it would be a matter for the Court.  Clearly the Court could give directions as to the process to be followed but it seems to me that, as a very minimum, the Court would have to take into account that the Deputy Chairman of the Tribunal is a lawyer in private practice who is not employed full time in Tribunal work.  It is not the case that he could be reasonably expected to drop everything, familiarise himself again with the relevant material and attend to the questions which are the subject of the summons.  He would have to look out his own notes and find the files maintained by the Tribunal and a question might arise as to whether it was legitimate or not for him to remind himself of the evidence which was actually given by looking at the transcripts which have subsequently been produced.  Given that that evidence was tendered over three days, one assumes that there would be much for him to consider.  The questions to be put to him include references to the Representation which the Appellant has filed by way of appeal, and he would no doubt therefore have to consider the criticisms and objections which had been lodged in respect of the work he had done so far.  The Tribunal decision of course was not his alone.  He would have to consult with his colleagues on the Panel, and we have no knowledge of their availability either but they would presumably have to go through the same exercise which I have just described as relevant to the Deputy Chairman.  It appears to me that the chances of a formal response from the Deputy Chairman between now and the end of June are close to non-existent, and the chances of a substantial response by the end of July are uncertain in the extreme.  Assuming however, that such a response was received, it will need to be analysed by the Appellant and by the Respondent.  It is highly likely that the response would lead to an amendment of the Representation, or changes being made to the skeleton arguments which are to be filed in connection with the appeal.  It seems to me to be almost certain that the parties would not be ready for the appeal on August 4^th and that it would have to be put off.  That is not in the interests of justice and I am clear as a matter of case management that it would be inappropriate to make the request to the Deputy Chairman for this reason alone. 

17.      Secondly, the request for further reasons will only address one of the issues on the appeal.  It is not as though the appeal will no longer be necessary as a result of the request being made and answered.  The appeal will still need to go ahead, but, more likely, will be delayed.  

18.      Thirdly it was accepted by Advocate Austin-Vautier that the Court on the appeal would be interested in the reasons for the decision as at the date of the decision, and not the reasons as constructed some five months later.  The time lag is actually worse than this.  Evidence was heard in September and November 2014, and so in some respects, the reconstructed reasons would be given in relation to evidence that was heard up to nine months ago.  Advocate Austin-Vautier pointed out that in some of the English cases a delay of that order has been accommodated, but I have to say that in my judgment it is too long.  It is perhaps made worse by the fact that we have a differently constituted Tribunal in Jersey than exists in the United Kingdom, and, accepting as I do that there is jurisdiction to make a request of the Chairman of a tribunal to respond to give further reasons, my own view is that as a general rule such a request should only be made if it follows shortly after the decision was given and the evidence heard. 

19.      Finally I am not in favour of questions being delivered to the Deputy Chairman which, in effect, invite him to address the specific grounds of appeal.  It is one thing to frame questions which seek to elicit the reasoning which applied to a decision that was given, but it is something quite different to put questions which directly address the criticisms of the judgment under appeal and to invite reasons why those criticisms might be wrong.  It is no answer to this to say that the Royal Court, if it allows the appeal, might send the matter back to the Tribunal which heard the claim in the first instance for its reconsideration.  Of course the Court might do that - but it might also send the matter back to a tribunal differently constituted and one could not tell at the current stage of this case whether, if the appeal were to succeed, the matter would be remitted to the same or to a different tribunal. 

20.      In summary I think that to make the request of the Deputy Chairman of the Tribunal would cause delay and extra expense and it is not proportionate or in the interests of justice that I do so.  

21.      This application by the Respondent is independent of the main appeal and therefore I will hear submissions on the costs incurred in relation to this application. 

Authorities

Polkey v A E Dayton Services Limited [1987] 3 All ER.

Meek v City of Birmingham District Council [1987] IRLR 250CA.

Barke v Seetec Business Technology Centre Limited [2005] EWCA Civ 578.

Burns v Royal Mail Group [2004] ICR 1103.

Employment Appeal Tribunal Practice Direction 2004.

Employment Tribunals' (Constitution and Rules of Procedure) Regulations 2004.

English v Emery Reimbold & Strick Limited and other appeals [2002] EWCA Civ 605.

JEP v Al Thani [2002] JLR 542.

Employment (Jersey) Law 2003.