Articles

Barke v SEETEC Business Technology Centre Limited

Date: October 20, 2007

Expertise: Employment

CA (Brooke LJ, Buxton LJ, Dyson LJ)

Judgment 16th May 2005

Employment – Adequacy of Tribunal reasons – Power of EAT to request amplification of reasons from Tribunal before final determination of an appeal.

In an important decision for the management of employment appeals, the Court of Appeal has approved the procedure explained by the EAT in Burns v Royal Mail Group plc [2004] ICR 1103. It is therefore open to the EAT to adjourn an appeal and request amplification of the written reasons already provided by the ET, in circumstances where the ET has overlooked an issue or where it has failed to give sufficient or sufficiently clear reasons for reaching a particular conclusion. The Court of Appeal provided some guidance as to the limits on the exercise of this power.

The Burns procedure is now regularly used by the EAT at the initial “sift” stage. It is analogous to the procedure endorsed in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 for appeals from civil courts. Between 2002 and 2005 there were between 70 and 100 such references back to the ET. These were often cases were where the Appellant was challenging the adequacy of the ET’s reasons for reaching a particular conclusion. This procedure was designed to save costs by avoiding the need for a full EAT hearing before remission to the ET, and to reduce delay by seeking further reasons from the ET at the very start of the appeal process when matters were still fresh in the ET’s mind.

THE LEGALITY OF THE PROCEDURE

The legality of the Burns procedure had always been in some doubt, given the contrary conclusion reached in the earlier EAT case of Reuben v Brent London Borough Council [2000] ICR 102 (Morison J presiding), and comments made by the Court of Appeal in Tran v Greenwich Vietnam Community Project [2002] ICR 1101. In the latter case, albeit obiter, a majority of the Court of Appeal had doubted whether the EAT had the power during the course of an appeal to seek amplification from the ET of allegedly inadequate reasons before making a final determination. They had held that such an interim procedure was not “for the purposes of disposing of the appeal” and was not therefore did not fall within the power provided by Section 35 of the Employment Tribunal Act 1996.

Given this uncertainty about the validity of a procedure which was being applied to a significant number of appeals, the Department of Trade and Industry was permitted to intervene in the Barke appeal in order to defend the Burns procedure on behalf of the Employment Tribunal Service.

In Barke the Court of Appeal agreed with the majority in Tran that there was no such power provided by Section 35 of the Employment Tribunal Act 1996. However, the Court found that the power did exist by virtue of Rule 30(3)(b) of the 2004 Tribunal Rules and also under the EAT’s power to regulate its own procedure provided by Section 30(3) of the Employment Tribunals Act 1996. The Court rejected the argument that the ET was “functus officio” once it had given its reasons, noting that the ET retained its original powers because it has not yet completed its task. In any event the ET retained a range of other powers once written reasons had been provided – to correct clerical errors, provide a copy of the Chairman’s notes of evidence, and review its own decision. There was no reason why the ET should not have the further power to answer questions asked by the EAT.

 

THE LIMITS ON THE PROCEDURE

The Court of Appeal rejected the argument that the ET’s power to supplement its original reasons was extremely limited, because of the alleged risk of ex post facto rationalisation so as to justify the original decision. The Court endorsed Burton J’s comments in Sinclair Roche & Temperley v Heard [2004] IRLR 763 at paragraph 46 that ETs could be expected to show a very high degree of professionalism when asked to amplify its reasons. The Burns procedure was a general case management power available where the EAT considered it was of assistance in resolving the issues raised on the appeal. However the Court of Appeal considered that there would be cases where such a request was inappropriate. This would be where the extent of the existing reasoning was so fundamentally deficient that there would be a real risk that further reasons would be reconstructions or where there was an allegation of bias made against the ET. The EAT would have to weigh the danger of the ET tailoring its answers against the benefit of having those reasons. Beyond this, the Court left it for the EAT to give detailed guidance on the limits of the procedure in a future case.

 

CHALLENGING THE BURNS PROCEDURE

In the first instance parties should apply to the EAT to discharge or vary a Burns order, rather than appeal to the Court of Appeal. If such a challenge fails it would be open to appeal the order to the Court of Appeal at that stage, although the Court would be slow to interfere with the approach which the EAT had adopted in an individual case. It was a discretionary power in the exercise of case management.

 

APPLICATION TO THE PRESENT CASE

In the present case, Burton J had posed a series of questions to the EAT which were framed in terms of a historical enquiry : had the Tribunal formed an opinion on a particular issue/argument, and if so what was it ? The Court of Appeal felt that such a type of question was well within the EAT’s discretion in exercising this jurisdiction. Therefore the appeal was dismissed.

Bruce Gardiner of 2 Temple Gardens appeared for the Respondent SEETEC, instructed by Wollastons; Oliver Hyams appeared for the Appellant, Mrs Barke, instructed by Brian Barr ; Nicholas Underhill QC appeared for the intervener, the DTI, instructed by The Treasury Solicitor. bgardiner@2tg.co.uk

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