Court of Appeal: EAT's role is not to rule on employment cases on their merits

However, Lord Justice Kay suggested that a higher court could be open to "softening" this approach in future, due to "procedural developments" that had changed the relationship between the employment tribunal and EAT. He said that it would have been "inappropriate" for him to have decided differently so soon after a different panel of judges in the same court had "so clearly reaffirmed the conventional approach".

Ruling in a case between Lincoln College and a former prison tutor, Mr Jafri, last month, a Court of Appeal panel led by Lord Justice Laws found that it was not the task of the EAT to decide what was "right" on the merits of the case. Rather, the EAT's function was limited to "see[ing] that the ET's decisions are lawfully made", he said.

Lord Justice Kay said that "but for the intervention of" the Jafri case, "two significant developments" could have persuaded him to adopt a different approach in the present case.

"An [employment tribunal] now commonly comprises an employment judge sitting alone," he said. "In such cases, there is no question of the EAT (itself an expert tribunal) depriving a successful applicant of a right to trial by industrial jury."

"The second development is the introduction of the overriding objective [to deal with cases justly] into this jurisdiction. It seems to me that the EAT ought to have it in mind when deciding whether remittal is appropriate. In the present case, the hearing in the [employment tribunal] lasted several days. That does not mean that a remittal hearing would be of the same duration, but the questions of proportionality and saving expense which are written into the overriding objective could have a part to play on the issue of whether or not to remit," he said.

The employee in this case, Gary Burrell, had succeeded in a claim of victimisation in the original employment tribunal hearing. The EAT identified an error of law in the tribunal's judgment, but rather than remit the case back to the employment tribunal for further consideration on the basis of a corrected understanding of the law, it upheld the appeal of Burrell's employer, Micheldever Tyre Services.

"Using the language of [Lord Justice Laws] in [the Jafri case], has the EAT fallen into the legal error of making a factual assessment for itself rather than one which necessarily flows from the findings made by the EAT, supplemented by undisputed or indisputable facts?" Lord Justice Kay said.

"With some hesitation, and not without regret, I have come to the conclusion that the EAT did fall into that legal error. Notwithstanding the chronology and the finding of 'a reasonable, and arguably the best, solution', I do not feel able to say that it would not have been open to the [employment tribunal], properly directing itself as to the law, to conclude [differently]," he said.

Elsewhere in the judgment, Lord Justice Kay said that the EAT had some flexibility within the confines of the conventional approach to remittal "provided that it is intellectually honest". For example, as suggested by Lord Justice Underhill in the Jafri case, parties could be "encouraged to consent to the EAT disposing of the case" rather than remitting it to the employment tribunal, he said.

"Even where remittal is necessary, the EAT, mindful of the overriding objective, may limit the scope of the remittal, for example by identifying issues or limiting or forbidding further evidence," he said. "It may also save further expense by remittal to the same rather than a fresh tribunal, subject to the constraints which govern that choice."