Korashi v Abertawe Bro Morgannwg University Local Health Board

The Burns/Barke procedure permits the Employment Appeal Tribunal to invite an employment tribunal to clarify, supplement or provide reasons before finally determining an appeal. It is appropriate where the tribunal’s reasons were inadequately expressed or an issue was overlooked, but not where the deficiency is so fundamental that supplementary reasons risk reconstructing the decision or encouraging tailored fact-finding.

The procedure remains a discretionary case-management tool. The Court of Appeal should intervene only where the Employment Appeal Tribunal exceeds its discretion or fails to apply a relevant principle. The number and breadth of questions, and delay, are not decisive when assessed in the context of a lengthy, multi-faceted hearing and the overriding objective.

Dr Korashi brought claims concerning race discrimination and detriment for making protected disclosures. Following an eight-week hearing, the Employment Tribunal dismissed the claims on 17 July 2009.

On appeal, the Employment Appeal Tribunal ordered the parties to formulate questions for the Employment Tribunal under the Burns/Barke procedure and later obtained answers. Dr Korashi challenged that interlocutory case-management decision in the Court of Appeal, arguing that the questions were excessive, too late and risked reconstructed reasoning and fact-finding. The central issue was whether the Employment Appeal Tribunal had acted unlawfully in adopting the procedure.

1. Disposition. The appeal was dismissed unanimously. The Court was concerned only with whether the Employment Appeal Tribunal had committed legal error in adopting the Burns/Barke procedure, not with the substantive merits of the Employment Tribunal’s decision.
2. Applicable principles. The procedure permits an Employment Tribunal to clarify, supplement or provide written reasons where an issue was omitted or reasons were absent or inadequate. The general pragmatic approach was described in English v Emery, Reimbold & Strick Ltd [2002] 1 WLR 2409. Burns v Royal Mail Group [2004] ICR 1103 recognised both the dangers of remission and the utility of carefully controlled remission. Barke v SEETEC Business Technology Centre [2005] ICR 1373 confirmed that the procedure should not be used where the deficiency creates a real risk that supplementary reasons will reconstruct rather than reveal the tribunal’s actual reasoning. The Employment Appeal Tribunal must identify correctly the alleged deficiency: Woodhouse School v Webster [2009] ICR 818.
3. Appellate restraint. The Employment Appeal Tribunal’s decision is a discretionary case-management decision. The Court of Appeal should be slow to interfere, but may do so where the Employment Appeal Tribunal exceeds the ambit of its discretion or fails to consider a relevant principle.
4. Application. The questions were unusually numerous and extensive, and the delay was concerning. However, the answers were available to the Court and did not appear to demonstrate that the risks of reconstructed reasoning or tailored fact-finding had materialised. The questions addressed particular facets of a lengthy and multi-faceted hearing. Their number and scope therefore did not make the procedure impermissible. The Employment Appeal Tribunal had made a balanced case-management decision directed to proportionality and the overriding objective.
5. Substantive appeal reserved. The appellant remained entitled to challenge the Employment Tribunal’s judgment and the answers for legal error at the substantive appeal hearing.

1. Employment Tribunal: After an eight-week hearing, the claims were dismissed on 17 July 2009.
2. Employment Appeal Tribunal: On appeal, the EAT made an amended order on 29 July 2010 requiring questions to be prepared under the Burns/Barke procedure, followed by a directions hearing and answers from the Employment Tribunal. The relevant appeal reference was UKEAT/0424/09/JOJ.
3. Court of Appeal (Civil Division): The challenge to the EAT’s interlocutory case-management decision was dismissed.