Rustamova v Calder High School

An Employment Tribunal must produce a valid judgment and written reasons after a remitted hearing. Under the applicable procedural rules, the Employment Judge must sign both documents. Where lay members formed the majority, the Employment Judge should draft the majority reasons with their approval, even if the Judge dissented from the substantive decision.

A document drafted and signed only by lay members did not meet those requirements. The defect was substantive as well as formal. The Employment Appeal Tribunal had jurisdiction under section 21 of the Employment Tribunals Act 1996 to address that legal error. The proper course was to adjourn the appeal and return the matter to the same Tribunal for valid reasons and a judgment.

The claimant, an English teacher, was summarily dismissed and brought an unfair dismissal claim. The Employment Tribunal dismissed the claim by a majority, with the Employment Judge dissenting.

On an earlier appeal, the Employment Appeal Tribunal held that the majority reasons were not Meek compliant and remitted the matter to the same Tribunal for a further hearing and reasons. Following that hearing, two lay members produced supplementary reasons, but the Employment Judge neither drafted nor signed a judgment or reasons.

The claimant appealed again, challenging the supplementary reasons. The central issue became whether there was a valid Tribunal judgment and reasons capable of supporting or being challenged on appeal.

1. The appeal was adjourned and the case returned to the same Employment Tribunal. The Tribunal was directed, if practicable within 28 days, to produce a judgment following the remitted hearing and written reasons, both signed by the Employment Judge.

2. The Appeal Tribunal rejected the respondent’s submission that it lacked jurisdiction because no valid judgment or reasons had accompanied the appeal. Section 21 of the Employment Tribunals Act 1996 permits an appeal on a question of law arising from an Employment Tribunal decision or proceedings. Whether the Tribunal had discharged its duty to provide a judgment and written reasons was such a question.

3. The lay members’ supplementary document did not comply with rules 29(1) and 30(4) of the ET Rules 2004. It was signed by the lay members but not by the Employment Judge. The defect was one of substance as well as form, because the Judge appeared not to have participated in the post-remittal process.

4. Applying the guidance in Anglian Home Improvements Ltd v Kelly, where lay members are in the majority, a dissenting Employment Judge should preferably write the majority reasons with their approval. That approach had initially been followed, but was not followed after remission. The Judge was therefore to draft the reasons with the lay members’ approval and sign them.

5. The Appeal Tribunal declined both the proposed slip-rule solution and the respondent’s request to dismiss the appeal. Once valid reasons were supplied, the appeal was to be re-listed before the same division unless the parties agreed to disposal on paper.

• Employment Appeal Tribunal: This appeal was adjourned and the case was returned to the same Employment Tribunal for a judgment and reasons complying with the procedural rules.
• Employment Appeal Tribunal: In appeal EAT/284/11/ZT, a division presided over by HHJ Birtles allowed the claimant’s earlier appeal because the majority reasons were not Meek compliant. It remitted the case to the same Tribunal for a further hearing and reasons.
• Employment Tribunal: The unfair dismissal complaint was dismissed by a majority in reasons promulgated on 17 March 2011. After remission, supplementary reasons were issued following a hearing on 2 May 2012, but were signed only by the lay members.