Appeal No. UKEAT/0072/12/CEA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 28 June 2012

Before
HIS HONOUR JUDGE PETER CLARK
MR D BLEIMAN
MR D G SMITH

MRS P N IGBINAKE	APPELLANT

CLARKSON HOUSE RESIDENTIAL CARE HOME LTD
T/A THE VICARAGE RESIDENTIAL CARE HOME	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR K IGBINAKE
(Representative)	
For the Respondent	MR RICHARD REES
(Representative)
Peninsula Business Services Ltd
The Peninsula
2 Cheetham Hill Road
Manchester
M4 4FB	

SUMMARY
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

Inadequate Employment Tribunal reasons.  Burns-Barke order made.  Appeal adjourned.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	The Claimant, Mrs Igbinake, was employed by the Respondent care home as a care assistant from 10 September 2009 until her resignation in circumstances that she contended amounted to constructive dismissal on 14 December 2010.

2.	On that same day she lodged a form ET1 at the Manchester Employment Tribunal complaining, materially, of unfair dismissal and unlawful racial discrimination.  The claims were defended and came on for hearing before a Tribunal chaired by Employment Judge Hewitt on 17 May and 11 July 2011.  By a Judgment dated 15 July that Tribunal dismissed both her claims of unfair dismissal and race discrimination, upholding other claims with which we are not concerned.  It seems that the Claimant made an application to the Tribunal for written reasons for the purposes of her appeal to the EAT.  Reasons were provided in a document signed by the Employment Judge and dated 13 October 2011.  Those reasons begin in this way:

“The Tribunal’s judgment was promulgated on 15 July 2011 and reasons are provided following a request on behalf of the claimant pursuant to Rule 30(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
The reasons provided are confined to the specific request contained within that letter, namely that ‘full reasons be given for the acceptance of this evidence (i.e. that of the respondent) particularly in the circumstances of this particular case’.”

3.	We have not been provided with a copy of a letter containing the quoted remarks, but Mr Igbinake, the Claimant’s husband, who represents her today, sent to the EAT an email request made to the Employment Tribunal and dated 29 July 2011, which reads in these terms:

“To whom it may concern [the name of the case is then given]
Subsequent to the telephone conversation I had this morning with one of your members of staff called Alex at about 8.30am, I am writing to request for a written reasons for judgment for the above.”

4.	What follow are five short numbered paragraphs constituting the Tribunal’s reasons.  It seems from paragraph 1 that full reasons for the Tribunal’s Judgment were given orally on 11 July; we shall return to an issue about that in a moment.  Those reasons are plainly not replicated in the document of 13 October.  Having limited itself to what they describe as the specific request by the Claimant, paragraph 4 merely states that the Tribunal concluded that the Respondent’s witness, Mr Pooloogadoo, was a credible witness without more.

5.	At paragraph 1 of her grounds of appeal the Claimant avers, unsurprisingly, that the Employment Judge has failed to provide sufficient written reasons for the Tribunal’s Judgment, invoking rule 30(6) of the 2004 ET Rules.  What then follows is a challenge to the Tribunal’s view of witness credibility and then a review of the factual issues not touched on in the Tribunal’s reasons.  The grounds conclude with an allegation of perversity.

6.	By their answer the Respondent accepts that the reasons provided by the Employment Judge were not, in Sedley LJ’s helpful expression, Meek-compliant (Meek v City of Birmingham District Council [1987] IRLR 250).  In particular, it is there acknowledged that the requirements of rule 30(6) have not been complied with.  However, the Respondent goes on to take issue with the following grounds of appeal.

7.	The appeal was considered on the paper sift by Langstaff P, who directed a full hearing of the appeal on all grounds by an order seal dated 7 February 2012.  No Burns-Barke order was then made requesting full reasons from the Tribunal so as to comply with rule 30(6).  It is in these circumstances that the case now comes before us for hearing.

The appeal
8.	The first question for us is whether we agree with the parties’ joint position that the reasons are inadequate; we do.  There is no warrant in rule 30 to limit reasons to any particular point raised in a party’s request for reasons.  If full reasons were given orally at the end of the hearing on 11 July, it is a mystery to us as to why those reasons were not transcribed, corrected and issued in accordance with rule 30(5).  Not to do so plainly amounted, in our judgement, to an error of law on the part of the Employment Judge on behalf of the Employment Tribunal.

9.	Furthermore, even on the limited exercise undertaken by the Judge he has failed to explain why Mr Pooloogadoo’s evidence was accepted; see the observations of Morison P, in Tchoula v Netto EAT, 6 March 1998, approved by Sedley LJ in Anya v University of Oxford [2001] ICR 847, paragraph 24.

10.	The question, then, is what is to be done with this case?  Mr Igbinake acknowledges that his remaining grounds of appeal cannot properly be determined on the present state of the Tribunal’s reasons.  He submits that the proper course is to allow the appeal and remit the case for re-hearing on the unfair dismissal and race discrimination complaints to a fresh Employment Tribunal.

11.	Mr Rees, who did not appear below, on behalf of the Respondent, draws our attention to an application contained in the Respondent’s Answer for the EAT to seek further written reasons from the ET and the President’s response dated 9 March 2012, which reads as follows:

“A stay for the purpose of seeking Reasons is inappropriate given the real risk that the Employment Tribunal will produce Reasons to justify the decision reached.  The contention that the Reasons on some grounds are inadequate is agreed, but in issue will be the scope of any remission as a whole.”

12.	The possibility that in referring a case back to the Tribunal for further reasons the Tribunal may, possibly subconsciously, construct fresh reasons to justify their initial decision was considered and discussed in the Judgment of the Court of Appeal delivered by Dyson LJ in Barke v Seetec [2005] IRLR 633 (see paragraph 46).  However, the Burns procedure laid down by Burton P, in that case (Burns v Consignia (No. 2) [2004] IRLR 425) was approved by the Court in Barke in an appropriate case in the interests of saving expense to the parties.

13.	We have therefore revisited the President’s direction in the light of the submissions made to us today.  We appreciate the risk identified by the President, but we think it can be minimised, if not removed, in this way.  We have caused enquiries to be made of the Manchester Employment Tribunal and are told that recordings of Judgments are destroyed after one year.  According to the Tribunal’s reasons, full reasons were given on 11 July 2011, just under a year ago.  If so, they may be transcribed and, subject to correction, provided to the EAT and in turn to the parties.  Mr Igbinake tells us that full reasons were not given on that day, merely the decisions appearing in the Judgment.  We cannot at this stage say which version is correct.  However, doing justice between the parties, we take into account the fact that the Respondent has a decision in its favour.  It seems to us unfair to require a full re-hearing before another Tribunal if proper reasons were given on the day.  Apart from the inconvenience and expense to the parties, the Claimant would gain a second bite of the cherry simply as a result of a procedural failing below.

Conclusion
14.	In these circumstances, we shall adjourn this hearing pending receipt of a corrected transcript of the oral reasons given by the Employment Judge in this case on 11 July 2011 and no others.  He is requested to provide those Reasons pursuant to ET rule 30(3)(b) within 28 days of the date of our order if practicable.  Upon receipt of those written reasons I shall give directions on paper for the further progress of this appeal.