Barke v SEETEC Business Technology Centre Ltd

This appeal concerned the lawfulness and limits of the Employment Appeal Tribunal's practice (the "Burns procedure") of inviting an employment tribunal to clarify, supplement or give written reasons where its judgment appears to omit or inadequately explain a material issue. The Court of Appeal held that the EAT has power to invite amplification of reasons: the invitation is authorised by rule 30(3)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 and, more generally, by the EAT's power to regulate its own procedure (section 30(3) of the Employment Tribunals Act 1996), subject to statutory limits. The court rejected a reading of section 35(1) of the 1996 Act as authorising such requests at any stage because the words "for the purpose of disposing of an appeal" denote disposing finally, so section 35(1) does not supply independent power to make interim requests; however, the EAT may act under rule 30 and its procedural regulation powers.

The court emphasised that the Burns procedure should be exercised with caution: it is appropriate to invite amplification where the request is to elicit historical facts or explanations of what reasons the tribunal in fact reached, but it is inappropriate where the deficiencies in reasoning are so fundamental that there is a real risk of reconstructive or tailored post hoc reasons or where allegations of bias are material. The court upheld the order made in this case as being within the EAT's discretion and dismissed the appeal.

Background and parties:

• The appellant, Mrs E Barke, brought claims of disability discrimination and unfair dismissal against Seetec. Both claims were dismissed by an employment tribunal. She appealed to the Employment Appeal Tribunal; the EAT (President Burton J) issued an order under the Burns procedure requesting the employment tribunal to provide further written answers and reasons on particular grounds of appeal. Mrs Barke appealed to the Court of Appeal challenging the lawfulness and scope of that procedure and the specific order.

Nature of the application and issues:

• (i) The appellant challenged the EAT's jurisdiction to invite an employment tribunal to amplify or supplement its reasons after judgment and registration.
• (ii) If the jurisdiction exists, she challenged whether the particular order in her case was a proper exercise of it.

Procedural history:

• The appeal to the Court of Appeal was from the Employment Appeal Tribunal order made by the President, which in turn followed the Employment Tribunal's dismissal of the underlying claims. The EAT order was made pursuant to the practice explained in Burns v Royal Mail Group and to the 2004 practice direction and rules.

Issues framed by the Court:

The court addressed two primary questions: whether the EAT had authority to make requests of the kind made in the order and, if so, whether the particular order was within the proper exercise of that power.

Reasoning and disposition:

• The Court held that section 35(1) of the Employment Tribunals Act 1996 should be read as permitting remission only when an appeal is being finally disposed of; it does not by itself authorise interim requests of the Burns kind. The Court nonetheless concluded that rule 30(3)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 permits the EAT to request written reasons at any time and that, more generally, the EAT has power under section 30(3) of the 1996 Act to regulate its procedure and adopt the Burns practice.
• The Court considered contrary authorities (notably Tran v Greenwich, Reuben and Ermakov) and distinguished cases where reasons were statutorily required at the same time as a decision. It rejected the view that the employment tribunal is functus officio for all purposes once reasons are entered. The Court emphasised case-management and overriding objective considerations and accepted that the Burns procedure is a valuable and ordinarily proper tool, but that it must be exercised with care to avoid the risk of post hoc reconstruction of reasons or the appearance of bias.
• Applying these principles, the Court held that the questions asked in the present case were within the EAT's discretion and dismissed the appeal, ordering costs against the appellant.

This was an appellate judgment. The Court of Appeal dismissed the appeal. It held that the Employment Appeal Tribunal lawfully has power to invite an employment tribunal to clarify, supplement or give written reasons (the Burns procedure) relying on rule 30(3)(b) of the 2004 Rules and the EAT's general power to regulate its procedure; section 35(1) of the Employment Tribunals Act 1996 does not itself authorise interim remittal because "for the purpose of disposing of an appeal" signifies final disposal. The Burns procedure is a proper case-management tool but must be used with caution to avoid post hoc reconstruction of reasons or the appearance of bias; the order in this case fell within the EAT's discretion and was appropriate.

Appeal to the Court of Appeal from an order of the Employment Appeal Tribunal (President Burton J) made pursuant to the Burns procedure, following an employment tribunal judgment dismissing the appellant's disability discrimination and unfair dismissal claims. See Court of Appeal neutral citation [2005] EWCA Civ 578.