Bone v London Borough of Newham

An employment tribunal’s slip-rule power is confined to clerical mistakes and errors arising from an accidental slip or omission. It cannot be used to add a substantive finding which the tribunal intended, but failed, to make in its original judgment. Where the Employment Appeal Tribunal identifies that a tribunal reached, or plainly intended to reach, a legally open conclusion but expressed it inadequately, it must correct the resulting error of law rather than leave an unjust result in place. It may invite clarification or amplification under the Burns procedure and, in an exceptional case, remit the matter with directions. A proportionate remittal to the same tribunal may be preferable to a complete rehearing.

Caroline Bone brought consolidated claims of sex discrimination, victimisation, constructive unfair dismissal and breach of contract against the London Borough of Newham and others. The Employment Tribunal found discrimination, victimisation and unfair dismissal in relation to various matters. Its original judgment did not state that the constructive dismissal was itself discriminatory. During the remedies hearing, the Tribunal issued a second certificate of correction adding that finding.

The Employment Appeal Tribunal held that the second certificate exceeded the power in paragraph 37 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. It allowed Newham’s appeal but remitted a separate cross-appeal issue concerning the failure to assist Bone’s return to work. The central issue was whether the EAT should simply leave the original judgment in place or take procedural steps to correct the Tribunal’s inadequately expressed finding.

1. Appeal allowed. Lord Justice Wall gave the leading judgment, with Lady Justice Smith and Lord Justice Buxton agreeing. The EAT was right that the Tribunal’s second certificate exceeded the scope of the slip rule, but it erred in treating the original judgment as necessarily final and leaving the resulting injustice uncorrected.

2. The power under paragraph 37 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, analogous to CPR 40.12, permits correction of clerical mistakes and errors arising from accidental slip or omission. It does not permit the addition of a substantive finding which the Tribunal had failed to make, even where the Tribunal had intended to make it.

3. The EAT’s function on an appeal is to identify and correct errors of law. Having found that the Tribunal manifestly intended to find that the constructive dismissal was an act of direct sex discrimination and victimisation, and that such a finding was legally open to it, the EAT should not have concluded that the original decision had to stand.

4. Under the Burns procedure, whose legality was explained in Barke v Seetec Business Technology Centre Limited [2005] EWCA Civ 578, the EAT may invite an employment tribunal to clarify, supplement or provide reasons before finally disposing of an appeal. The tribunal is not functus officio for that purpose. The procedure operates through the overriding objective and the power to regulate EAT procedure, rather than through the wide statutory powers in section 35 of the Employment Tribunals Act 1996. The approach is consistent with English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 and VK v Norfolk County Council and The Special Educational Needs and Disability Tribunal [2004] EWHC 2921 (Admin).

5. On these highly unusual facts, the EAT could also finally dispose of the appeal by remitting the application to the same Tribunal. The Court of Appeal set aside the EAT’s determination and directed the Tribunal to state formally and in writing its reasons for the discrimination and victimisation finding, determine issue (xxvi) unless Newham abandoned its defence, and complete the remedies hearing on that basis. The restriction limiting the remission to issue (xxvi) was removed.

• Court of Appeal (Civil Division) — Allowed Bone’s appeal, set aside the EAT’s determination and remitted the matter to the same Employment Tribunal with directions.
• Employment Appeal Tribunal — On 21 June 2007, allowed Newham’s appeal against the second certificate of correction and allowed Bone’s cross-appeal concerning issue (xxvi), remitting that discrete issue.
• Employment Tribunal — Promulgated its liability decision on 26 June 2006, issued a first certificate of correction on 8 September 2006, and issued a second certificate during the remedies proceedings, dated 5 January 2007.