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Employment Law

Legal guidance - compliance - software

09 OCT 2014

Jafri v Lincoln College [2014] EWCA Civ 449; [2014] IRLR 544; (2014) EMPLR 052

Edward  Benson


16 April 2014

Court of Appeal, Civil Division

Laws, Underhill LJJ and Sir Timothy Lloyd

Appeals from employment tribunals to the Employment Appeal Tribunal must be based on an alleged error of law. If the EAT finds an error of law, it must generally remit the case to the employment tribunal. It should only decide the case itself if it is clear what the correct outcome would have been if the error had not been made.

J was employed by a college to provide education services at a prison. C complained that J and others had physically and verbally abused her. The prison governor decided to exclude J and others from the prison. C’s allegations were investigated and a report was prepared which was unfavourable to J. J raised grievances against C that her allegations had been false. C went on sick leave and then left the college. The college therefore considered it had no option but to uphold J’s grievance. The prison refused to have J back until the disciplinary investigation was completed. The college tried to deploy J elsewhere but was unable to. J was dismissed.

A tribunal rejected his unfair dismissal claim. It found that C’s complaints were genuinely made and that J had a problematic attitude to women in authority. The EAT held this was an error of law: the tribunal should not have reached a conclusion on C’s complaints when the employer itself had not done so. However, the EAT concluded that error made no difference and the employment tribunal’s conclusion that the dismissal was fair was still correct because the employer had no other option but to dismiss.

The Court of Appeal held that, if the EAT concludes the ET made an error of law, it must remit the case to the ET unless (a) the error cannot have affected the result; or (b) the EAT is able to conclude what the result would have been if the error had not been made. In this case, the EAT had in effect concluded that the error could not have affected the result. It was therefore right not to remit the claim.

Lord Justice Underhill, a previous EAT President, said he regretted that the EAT’s role is so limited. If, as often happens, the EAT is in as good a position to decide the case as the ET, why waste time, resources and costs by remitting to the tribunal?


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