Barke v Seetec Business Technology Centre Ltd

Section 35(1) of the Employment Tribunals Act 1996 permits the Employment Appeal Tribunal to exercise powers or remit a case only when it finally disposes of an appeal. It does not authorise an interim remission for further reasons.

Nevertheless, the Employment Appeal Tribunal may lawfully invite an employment tribunal to clarify, supplement or give written reasons. Rule 30 and the tribunal's procedural powers support that course. The invitation should be used as a case-management measure, with careful attention to the risk of reconstructed reasons or bias and to the benefit of resolving appeals fairly, quickly and economically.

Mrs Barke's claims for disability discrimination and constructive unfair dismissal against Seetec were dismissed by an employment tribunal. She appealed to the Employment Appeal Tribunal on grounds including inadequate reasons and failure to address aspects of her constructive-dismissal case.

At the sift stage, the President of the Employment Appeal Tribunal requested answers from the employment tribunal under the procedure described in Burns v Royal Mail Group [2004] ICR 1103. The request sought clarification of whether the tribunal had considered specified matters and the reasons for its conclusions.

The appeal raised whether the Employment Appeal Tribunal had jurisdiction to make that request and, if so, whether the order was a proper exercise of the jurisdiction.

1. Appeal dismissed. The Employment Appeal Tribunal was entitled to invite the employment tribunal to amplify its reasons, and the particular request was within its case-management discretion.

2. Section 35(1) of the Employment Tribunals Act 1996 did not supply the power. “Disposing of” an appeal means dealing with it conclusively. Accordingly, the power to exercise the lower tribunal's powers or remit the case arises only on final disposal, not while the Employment Appeal Tribunal retains the appeal. The court approved the majority view in Tran v Greenwich Vietnam Community Project [2002] EWCA Civ 553.

3. The necessary authority arose under rule 30 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 and the Employment Appeal Tribunal's power to regulate its own procedure. Rule 30(3)(b) permitted a request for written reasons at any time, including where reasons had already been supplied. An employment tribunal was not functus officio merely because its judgment and reasons had been entered on the register. Its continuing functions, including review and correction, supported that conclusion. The approach in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 was applicable by analogy.

4. The Burns procedure is valuable because it may avoid an unnecessary full appeal and rehearing. It is not governed by the restrictive approach to later reasons in judicial review. The Employment Appeal Tribunal must, however, consider whether deficiencies are so fundamental that supplementary reasons may amount to reconstruction, whether bias is alleged, and whether the benefit of clarification outweighs the risk that the tribunal will tailor its answer. The overriding objective favours a proportionate, expeditious and economical resolution.

5. The court should ordinarily be slow to interfere with an individual case-management decision of this kind. A party seeking to challenge such an order should first use the liberty to apply to vary or discharge it. Here, the requested answers were directed to historical matters and were calculated to save expense. The order should, however, state clearly that the reasons sought are those of the employment tribunal.

• Court of Appeal (Civil Division): dismissed Mrs Barke's appeal and upheld the Employment Appeal Tribunal's power to invite clarification of reasons under the Burns procedure: [2005] EWCA Civ 578 .
• Employment Appeal Tribunal: at the sift stage, the President requested answers from the employment tribunal concerning grounds alleging inadequate reasons and omitted issues. The underlying appeal had not yet been finally determined.
• Employment Tribunal: dismissed the claimant's disability-discrimination and unfair-dismissal claims on 25 October 2004.