Out-Law News 2 min. read

EAT not usually entitled to resolve factual disagreements in UK employment cases, Court of Appeal rules

The UK ’ s Employment Appeal Tribunal (EAT) will not normally be able to resolve factual disagreements between parties involved in an employment dispute without parties' permission, the Court of Appeal has ruled.

In its judgment, the court said that it came to its conclusion “with regret” as returning such issues to the original employment tribunal (ET) to resolve “exposes the parties to unnecessary cost and delay”. However, tribunal procedure and previous cases made it clear that only the ET was entitled to decide what the outcome of a particular dispute would be once any errors of law were corrected by the EAT, the judges said.

“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,” said Lord Justice Underhill, one of the three Court of Appeal judges to give a judgment in the case.

“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,” he said.

Mr Jafri was a teacher and learning specialist, employed by Lincoln College at the time of the dispute as part of a contract to provide educational services to inmates at Sudbury Prison. In 2009, he was excluded from working in the prison as part of an allegation of abuse against him and another by a colleague. The colleague making the accusation ultimately left the college’s employment, but when Jafri tried to apply for her job he was told that he would not be allowed into the prison “under any circumstances”. In 2010, Jafri was dismissed after the college was unable to find him alternative employment away from the prison.

In its original ruling, the ET found that Jafri’s dismissal was justified as the college had tried to find him other employment but he was only interested in returning to the prison. On appeal, the EAT found that the ET had made three errors of fact, but considered that none of these negated the ET’s conclusion that the college had “done everything it could to prevent injustice” to Jafri. Appealing again to the Court of Appeal, Jafri claimed that the EAT had “decided the case for itself” when it should have returned it to the ET for a further hearing once it found that the ET had made an error of law.

Referring to earlier cases, in his leading judgment Lord Justice Laws said 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”.

“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,” he said.

“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,” he said.

Lord Justice Underhill went on to add that there was “no reason” why the EAT could not still decide on an issue in dispute if the parties agreed to it.

“In an appropriate case they should be strongly encouraged to do so,” he said.

“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,” he said.

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