Langford v Barking & Dagenham Primary Care Trust

An appeal tribunal will interfere with an employment tribunal's discretionary case-management decision to refuse a stay only where the tribunal took account of an irrelevant matter, omitted a relevant matter, or reached a legally perverse conclusion.

Where unfair-dismissal remedy issues are remitted while a wrongful-dismissal claim is pending in the High Court, the tribunal may complete its remitted task. It must recognise the distinct character of the Polkey inquiry and should frame its findings so as to avoid, so far as possible, deciding matters for the High Court.

The claimant, formerly the respondent Trust's chief executive, brought an unfair-dismissal complaint in the Employment Tribunal and separately pursued a substantially larger wrongful-dismissal claim in the High Court.

The Tribunal found the dismissal procedurally unfair but made a nil compensatory award under the Polkey principle. An earlier Employment Appeal Tribunal appeal and cross-appeal were allowed by consent, and the Polkey and contributory-conduct issues were remitted to the same Employment Judge.

Before the remitted remedy hearing, the claimant sought a stay pending the High Court trial. Employment Judge Goodman refused the application. The issue on this appeal was whether that refusal involved an error of law in the exercise of case-management discretion.

1. Appeal dismissed. The Employment Appeal Tribunal had no basis to interfere with the Employment Judge's discretionary refusal to stay the remitted proceedings.

2. The proper appellate approach was the limited one stated in Carter v Credit Change Ltd, [1979] ICR 919 CA. Intervention required an irrelevant consideration, a failure to consider a relevant matter, or a legally perverse conclusion. Applying the approach in Bastick v James Lane, [1979] ICR 778, none was shown.

3. The earlier EAT order had set aside the Employment Judge's conclusions on Polkey and contribution, including the apparent conclusion that the established facts justified dismissal without notice. It had not displaced the underlying factual findings, which remained binding in the Tribunal proceedings. Their effect, if any, in the High Court claim was for the High Court judge.

4. The Employment Judge correctly distinguished the remitted Polkey question from the wrongful-dismissal question. The former concerned the likelihood that a fair employer would have dismissed, even if mistaken; it did not require the Tribunal to decide whether the claimant had in fact committed misconduct entitling summary dismissal.

5. Although contribution created a greater risk of overlap, the Judge was entitled to take account of the advanced stage of the Tribunal proceedings, the costs incurred, the timing of the stay application, and the need to complete the remittal. Her proposed care in expressing findings so as to avoid further intrusion into the High Court's area was a permissible case-management response. The remitted remedy hearing could therefore be relisted.

• Employment Appeal Tribunal: This appeal was dismissed. The refusal to stay the remitted Employment Tribunal proceedings was upheld.

• Employment Appeal Tribunal: On 10 May 2013, the claimant's appeal on the Polkey issue and the respondent's cross-appeal on contribution were allowed by consent. Those issues were remitted to the same Employment Judge without further evidence on them.

• Employment Tribunal: Employment Judge Goodman refused the claimant's stay application by an order and reasons promulgated on 30 September 2013.