LTRS Estates Ltd (t/a Orwells) v Hamilton

A remission must be construed objectively from its wording and context. A direction for a complete rehearing will ordinarily concern the subject matter of the appeal, not unappealed issues already finally determined, unless the order clearly indicates a wider scope.

Finality, efficiency and economy in litigation create a strong presumption against reopening unappealed matters. The Employment Appeal Tribunal may exceptionally remit such matters where they are inextricably linked to an issue under appeal. Within the issues properly remitted, however, each party may adduce fresh evidence and advance any appropriate legal argument.

The employee brought contractual claims for notice pay, gratuities, overtime, bank-holiday payments and half-days worked. The first Employment Tribunal dismissed the first three claims but allowed the bank-holiday and half-day claims.

The employer successfully appealed the two allowed claims. The earlier Appeal Tribunal ordered a complete rehearing before a differently constituted Tribunal. At a subsequent case-management hearing, Employment Judge Salter treated that order as reopening all original claims, including the unappealed claims dismissed at first instance.

The employer appealed. The central issue was whether the earlier remission extended to the entire original case or only to the issues which had been before the Appeal Tribunal.

1. Appeal allowed. Employment Judge Salter erred in treating the earlier order as reopening claims that had been dismissed by the first Tribunal and were not appealed.

2. Under section 35 of the Employment Tribunals Act 1996, the remission defines the Employment Tribunal’s jurisdiction. An Employment Tribunal acts in error of law if it proceeds outside that scope.

3. The scope of a remission is determined objectively from the order as it appears and its context, rather than from the uncommunicated intention of the judge who made it. In an appeal, “this matter” naturally refers to the dispute before the appellate tribunal. The earlier order’s references to a fresh start, fresh evidence and submissions therefore concerned the appealed bank-holiday and half-day issues.

4. The public policy favouring finality of litigation reinforced that construction. Although the Appeal Tribunal may remit an unappealed matter where it is inextricably linked to the appealed issue, as illustrated by Irvine v Prestcold, that was exceptional. The dismissed notice-pay, gratuities and overtime claims were distinct and lacked any such link.

5. On the matters properly remitted, both parties remained free to advance fresh evidence and legal submissions. The case was remitted to Employment Judge Salter and the Tribunal for rehearing in accordance with the earlier order as clarified.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the case-management decision and clarified that the earlier remission was confined to the issues appealed.

• Employment Tribunal (Employment Judge Salter): Held that the earlier order required a rehearing of all claims in the original ET1, including claims previously dismissed and not appealed.

• Employment Tribunal (Employment Judge Warren): Dismissed the notice-pay, gratuities and overtime claims, but allowed claims concerning bank holidays and half-days. The employer appealed the latter findings only.