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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.
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?