Appeal No.	 EAT/273/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 February 1999
Judgment delivered on 14 September 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR A E R MANNERS
MR R SANDERSON OBE

MR D REUBEN	APPELLANT

1)	LONDON BOROUGH OF BRENT

2)	MRS WISE ST LEDGER	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A GUMBITI-ZIMOTO
(of Counsel)
Instructed By:
Mr K McMahon
Principal Litigation Officer
Commission for Racial Equality
Elliot House
10/12 Allington Street
London SW1E 5EH
	
For the Respondents	MR J DENNISS
(of Counsel)
London Borough of Brent
Chesterfield House
9 Park Lane
Wembley
Middlesex HA9 7RW	

	MR JUSTICE MORISON (PRESIDENT):	This appeal raises a point of some importance in relation to the powers of the Employment Appeal Tribunal.

1	The background to the appeal may be shortly summarised.  The Appellant, Mr Reuben, was employed by the London Borough of Brent as a Social Worker. Complaints had been made against the Appellant regarding the quality and professional objectivity of his work and practice in the areas of exercising statutory functions and following departmental policies and procedures. There had also been co-operation problems between the Appellant and his new line manager. The Council suspended the Appellant and planned to hold a disciplinary hearing to investigate the complaints.  At the end of an investigation, the Council informed the Appellant that the result of the hearing was that he would be summarily dismissed on the ground of misconduct. 

2	He was dismissed, and complained that he had been unfairly dismissed and that he had been discriminated against by reason of his race.  His case before the Tribunal was that he had not been guilty of any significant shortcomings in his work, as alleged, and that the way he was suspended from duty and thereafter dismissed was inconsistent with the way that other white employees had been treated.  At the outset of the hearing, Mr Reuben’s representative, Mr Barber of UNISON, was invited to explain how the case was being put against the senior Council employee who had been joined as second respondent.  On withdrawal of the complaint against her, the Appellant was ordered to pay her costs in the sum of £250.  The Appellant’s complaints against the Council were considered, and by a decision promulgated on 16 January 1997, were unanimously dismissed.

3	An appeal was filed against the decision essentially on two grounds: first, the order for costs should not have been made on the basis that the Appellant was being supported by his Trade Union; and, secondly, the decision on liability was flawed as it did not appear that the Industrial Tribunal had ever considered the second limb of his case that he had been discriminated by comparison with the named comparators.  There was no reference to the ‘comparators point’ in the tribunal’s summary of the Appellant’s submissions and no overt reference to the comparators in the reasons for the Tribunal’s decision.  Complaint was specifically made that at the hearing the Appellant’s representative brought evidence showing 10 situations where the Council had treated white employees more favourably by not dismissing them in situations similar to that faced by the Appellant.  By not making any findings on this evidence in their extended reasons, either the tribunal failed to consider properly that part of the case or alternatively erred in failing to make findings on a central element of the Appellant’s claim. 

4	The appeal was listed for a Preliminary Hearing and the Employment Appeal Tribunal, presided over by Lindsay J decided that the appeal in relation to the costs order should not go forward but should be dismissed, but that the other part of the appeal should proceed to a further inter partes hearing.  That order was made on 20 May 1997.  Shortly before that hearing, without any order having been made, there being no allegation of bias in the Notice of Appeal, the Appellant’s Union representative swore an affidavit complaining that the ‘comparators point’ was interrupted by the Chairman on the grounds that four of the ten comparators were irrelevant.  A summary or schedule of the circumstances of each comparator was put before the Tribunal by the Union, largely on the basis of its own documents obtained in the course of their representation of the individuals concerned.  In the penultimate paragraph of the affidavit the deponent swore:

“The interruption by the Chairman...is one of many instances during the course of the hearing when the Chairman sought to dictate the way I presented the case in what was more than an interventionist approach.   On two occasions he referred to an entirely separate Tribunal application where I had represented another applicant employed by the first respondent in a hearing before the same Chairman and in respect of which the applicant had lodged an appeal...”

5	It is to be noted that there was no application for leave to amend the notice of appeal to include any allegation of bias or other impropriety in the conduct of the case, and no reference was made to this matter in Lindsay J.’s judgment.  There was included in the Notice of Appeal what might be described as a general allegation of perversity and, unusually, the notice of appeal included a request that the Chairman’s Notes of Evidence be ordered.  No such order was made although it was, apparently asked for at the preliminary hearing.  It seems that the learned judge and lay colleagues took the view, shared by us, that the perversity point was just another version of the ‘comparators point’ and added nothing to the notice of appeal.

6	The matter was listed for a full hearing to take place on 3 March 1998.   Shortly before it was due to take place, an application was made on the Appellant’s behalf for the Chairman’s Notes of Evidence.  That application was heard by Judge Peter Clark and two colleagues and refused.  The Council did not, through their own choice, attend the hearing.  In giving judgment the Judge observed that the basis for the application was that

“…in the absence of any reference to the comparative cases on which the appellant sought to rely below in the Industrial Tribunal’s reasons, this Appeal Tribunal cannot properly adjudicate on the appeal without such Notes.”

Having dismissed the application the learned Judge said this:

“However, it does seem to me that it would assist the Appeal Tribunal and the parties if a copy of …[the] affidavit...were sent directly [to] the Chairman, Mr Menon, for his comments.   He should be asked to do so with our apologies for the short notice...”

An Order was made in these terms:

“…that the Chairman, Mr PRK Menon, do be asked for his comments, if any, on the affidavit ... bearing in mind that this appeal is listed for hearing on 3 March 1998.”

7	The Chairman duly responded by a letter dated 27 February 1998.  Not surprisingly, as he was not asked to confine his attention to the potential criticisms of his handling of the case, and to the alleged interruptions, he also referred to the more general allegation that the Tribunal did not appear to have considered the ‘comparators point’.  He confirmed that although the decision did not set out all the submissions made the tribunal gave careful consideration to all the submissions made. 

8	When the appeal came on for hearing on 3 March, neither the appellant nor his representative was present.  The appellant had asked for an adjournment by fax on 1 March, which was opposed and refused.   However, the appellant’s counsel suffered an accident at home the night before the hearing in which she was injured.  A message was sent saying she could not appear that day.  Despite suspicions that the Court may have had about the appellant’s position, it was apparently accepted that counsel’s predicament was genuine and the interests of justice required that the appeal should be adjourned.  The Court, presided over by HHJ Clark, gave a short judgment:

“The Respondent appears to-day by counsel…He accepts that inevitably justice requires that the adjournment be granted; however, we raise with him the possibility that before this case returns to the list the time might usefully be spent by remitting the matter to the same Industrial Tribunal to amplify their findings and reasons in accordance with the practice laid down in Yusuf v Aberplace Ltd [1984] ICR 850, and in the following circumstances.
The nub of this appeal is that in their reasons the Industrial Tribunal do not deal with the Appellant’s case below that he was unfairly dismissed and/or unlawfully discriminated against on the grounds of his race by reference to some ten comparable cases which were put before the Industrial Tribunal.
Having considered the Industrial Tribunal’s reasons and the Chairman’s letter dated 27 February 1998, and this course not being opposed by Mr Dennis we are satisfied that the reasons ought to deal with that part of the case but do not do so.
In these circumstances we shall adjourn and remit the case to the same Industrial Tribunal chaired by Mr Menon to amplify their reasons upon the question of comparative cases relied on by the Appellant…if that is not possible, it will be open to the Chairman to direct that the parties return to the Industrial Tribunal for evidence to be given and/or representations to be made, limited to the comparator issue.”

9	In a letter dated 3 June 1998 the Chairman of the tribunal stated that he and his members had met in chambers to amplify their reasons and that it should be read in conjunction with the letter in response to Mr Barber’s affidavit. 

10	The Chairman stated that the tribunal had considered the 10 comparator cases and after consideration had discounted 4 of them as they were concerned with disciplinary issues which bore no relevance to issues in the present case.

11	He went on to write the following:

“The six cases which the Tribunal did consider and take into account in reaching its decision bore a superficial similarity and were relevant to the issues in the present case. Those cases were thoroughly examined and analysed by the Tribunal and the range of disciplinary sanctions, if any, were noted. The Tribunal also considered Mr Barber’s submissions in relation to those cases. Having given careful consideration, the Tribunal formed the view - and having looked at those cases again on 18 May - the Tribunal maintains that view, i.e., the Respondent’s actions of dismissal in the present case was within the range and band of reasonable responses open to a reasonable employer in all the circumstances of the case. The Tribunal did bear in mind that it is important to look at comparative evidence and that no two cases are likely to be identical. It has, however, also got to be borne in mind that because the employer did not impose a sanction of dismissal in a particular case, it did not necessarily follow that he would be automatically acting unfairly if he were not to impose that sanction in another similar case.”

12	At the adjourned hearing of this appeal Mr Gumbiti-Zimoto, on behalf of the Appellant, contended that the letter of 3 June 1998 failed to deal with the comparator cases in relation to the claim of race discrimination and why they were felt not to be true comparators.  In any event, we were urged not to place any weight on the Chairman’s letters of 27 February 1998 and 3 June 1998 and instead look only at the tribunal decision in determining whether there had been an error in law.  It was not open to this Court to find that the tribunal had left out a crucial element of the Appellant’s case in their findings and then give them another opportunity to state their findings after the event. 

13	In reply, Mr Dennis submitted that the tribunal gave a lengthy and detailed account of their findings   Leaving out one element of the Appellant’s argument did not mean that the tribunal had either failed to properly consider it or consider it at all. A forensic examination of the tribunal decision was not called for in this case.    It was implicit from their findings that the tribunal had considered the issue of whether or not dismissal was a fair sanction in the circumstances of the case.  The tribunal was only expected to set out why it had concluded that the penalty of dismissal was an appropriate sanction in the circumstances of this case, which it had done.

14	Having carefully considered the arguments in this matter we consider that, albeit for understandable reasons, Clark HHJ erred in allowing the tribunal chairman an opportunity to expand upon the tribunal’s written findings.   The EAT’s powers are derived from statute.   The Court has power to allow an appeal or dismiss it.   It may remit a matter back to an Employment Tribunal and make such orders as the Employment tribunal are empowered to make.   The question at issue is whether the EAT is entitled, as a matter of jurisdiction, to remit a matter back to an Employment Tribunal for amplification or clarification of its reasons without allowing the appeal.   HHJ Clark relied upon what he described as the practice of the Court following the decision in the Yusuf case.   It is to be noted that it was he who suggested that the Tribunal should be invited to amplify their findings.   In Yusuf the Employment Tribunal declined the EAT’s invitation to supplement or explain their decision on the grounds that once it had been promulgated they had discharged their judicial function.   Yet the EAT concluded that there was good precedent to justify it remitting matters back to the same tribunal for further findings of fact or a re-statement of the conclusions of law.   Only one of the authorities assisted their conclusion; the others were concerned with cases where the appeal had been allowed and the matter remitted back to the same tribunal.

15	In Leverton v Clwyd County Council [1988] IRLR 23, May LJ stated:

“…in my respectful opinion an appeal to the Employment Appeal Tribunal should be decided upon the Industrial Tribunal’s reasons as originally drafted, and I deprecate any procedure whereby these may be supported or enlarged by any direct communication between the Industrial Tribunal on the one hand and the Employment Appeal Tribunal on the other.” 

It seems to us quite clear that Yusuf was wrongly decided.   It is the Employment Tribunal’s function to give a decision in accordance with their Rules of Procedure.   The decision, once given, is promulgated to the parties and entered in the Register.   The Register contains all promulgated decisions and is open to public scrutiny.   Apart from correcting any error under the slip rule [which correction would be added to the Register] once a decision has been entered in the Register, the Employment Tribunal is functus officio.   If it became aware that an appeal had been made, it would be quite improper for the Tribunal to seek to comment on the grounds of appeal or try and improve the decision or to fill in gaps.   The only circumstances in which a Tribunal may make comment is when there is an allegation of bias.   The tribunal’s views are, in such an event, being solicited to establish facts relating to the conduct of the hearing and not in relation to the terms of the decision itself.   Those comments are expressly sought by the EAT so that it can adjudicate upon the allegation of bias.  The other circumstance in which a tribunal chairman may be asked to do something after the decision has been made is to provide the record of the proceedings, namely his Notes of Evidence.   Where there have been many days of hearing and the notes are likely to be extensive, limited notes may be asked for.

16	If the EAT, as in this case, asks the Chairman to amplify his decision then there is immediately a problem.   What status does the Chairman’s additional words have?   They are not entered in the Register.   Under what principle of law may a decision maker in the judicial field be given a second chance to get his decision right, in the light of the notice of appeal?  Of course, if the EAT considered on the hearing of the appeal that the Tribunal had not, but should have, dealt with a particular point then it could allow the appeal and remit the matter back to determine particular issues.   By that process, the Employment Tribunal has been re-invested with the power to consider the case further, and is no longer functus officio.   Any further decision would be required to be entered in the Register and there could be a further appeal against the new decision.   The short-cut route adopted in this case ignores the status of a Tribunal which has concluded its task, and gives it a chance to make another, informal decision which has no legal status and deprives the appellant of a separate right of appeal against the ‘second attempt’.

17	With great respect to HHJ Clark and to the EAT in Yusuf, the practice referred to, if truly a practice at all, is fundamentally wrong in legal principle.   Further, we respectfully agree with the sentiment expressed by May LJ in Leverton.   This division of the EAT wishes to make it quite clear that appeals can only be decided in relation to the promulgated decision of the Employment Tribunal.  If an appeal is allowed, the case can be remitted back, or alternatively the EAT may substitute for the Tribunal’s decision a different decision.   There can be no half way house where a tribunal can comment on the substance of the decision or the notice of appeal to make good any shortcomings the decision may have had.   In this case, the learned Chairman was written to more than once so as to obtain a clear answer from him as to whether the position of the comparators had been looked at, despite any overt reference to them in the promulgated decision.    If the decision was defective because no or no sufficient reference had been made, then the appeal should have been allowed and the matter remitted back for such further hearing as the EAT directed.   

18	The problem for the EAT on this appeal highlights the undesirability of the short-cut route.   It seems clear that HHJ Clark and colleagues considered the decision to be defective, otherwise the Chairman would not have been invited to amplify it.   It would be difficult, were we so minded, to take a contrary view since that issue had been determined.   In fairness we are bound to say that we would have agreed with the EAT that the decision was defective since it did not properly deal with the case advanced to it.   It would now not be fair or just to the parties to remit the matter back to the same tribunal since it has expressed its views ‘informally’ through correspondence.   The only result we can arrive at is that the appeal be allowed and the matter remitted back to a freshly constituted tribunal for its determination.   By making the informal remission, this division of the EAT has been deprived of the option of allowing the appeal and remitting the matter back to the same tribunal.