Eyitene v Wirral Metropolitan Borough Council

An Employment Tribunal’s decision must be that of all members who sat, including the essential reasoning supporting it. That requirement does not mean that lay members must routinely read and approve the final written form of reserved reasons. It is sufficient that the members have deliberated fully, agreed the conclusions and essential reasoning, and that the Employment Judge drafts reasons which truly record them. The Judge may be responsible for the detailed expression. Lay members must remain entitled to request a draft, and a draft should be provided in a split decision to the member whose view is being stated. The same approach supports oral reasons followed by edited written reasons. An incidental narrative comment with no bearing on the dispositive reasoning does not, in context, establish bias.

This was an appeal against a preliminary-hearing decision of the Employment Appeal Tribunal, which had dismissed an appeal from a Liverpool Employment Tribunal decision dismissing claims of race and disability discrimination. The Employment Tribunal’s written reasons were promulgated on 7 February 2012, and the Employment Appeal Tribunal dismissed the appeal on 4 July 2013.

Permission to appeal was limited to whether the Employment Tribunal’s decision was properly made when the lay members had not seen or approved the final written reasons. A related allegation concerned an allegedly prejudicial description of the appellant’s conduct in the reasons.

The appeal was dismissed unanimously. Underhill LJ gave the judgment, with Maurice Kay and Tomlinson LJJ agreeing.

1. Section 4(1) of the Employment Tribunals Act 1996, reflected in regulation 9 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2014, requires the decision of an Employment Tribunal to be that of all the members sitting. The same applies to the essential reasoning leading to the decision. If the members disagree, the minority view must be recorded.

2. The members must therefore deliberate fully and agree the conclusions and essential reasoning. However, they need not routinely approve the final form of reserved written reasons. It is legitimate for the Employment Judge to draft the reasons from the agreed deliberations and notes, leaving the detailed expression to the Judge. Lay members remain entitled to request a draft before promulgation.

3. The established practice was lawful where it was properly followed. It required structured discussion of the issues, full notes of the decisions and essential reasoning, and recording of any disagreement. In a split decision, the draft should be sent to the member whose view the Judge is stating, as recognised in Anglian Home Improvements Ltd v Kelly [2004] EWCA Civ 90, [2005] ICR 242.

4. In straightforward cases, oral reasons may be given on the basis of agreed notes. If written reasons are later requested, the recording may form their basis and may be edited by the Judge, as discussed in The Partners of Haxby Practice v Collen UKEAT/0120/12. Rule 30(4) of the then current Rules of Procedure, requiring only the Judge to sign the reasons, was consistent with that approach.

5. The evidence showed that the Tribunal had deliberated together, agreed its findings and conclusions, and that the Judge’s written reasons reflected the substance of that agreement. The disputed reference to brinkmanship was, in any event, a narrative observation with no bearing on the dispositive reasoning and did not arguably establish bias.

1. Court of Appeal (Civil Division) dismissed the appeal: [2014] EWCA Civ 1243.
2. Employment Appeal Tribunal dismissed the appeal from the Employment Tribunal at a preliminary hearing on 4 July 2013.
3. Employment Tribunal, Liverpool dismissed the claims of race and disability discrimination in written reasons promulgated on 7 February 2012.