Jafri v Lincoln College

On an appeal on a point of law, the Employment Appeal Tribunal is a legal supervisor, not a substitute fact-finder. If it identifies an error of law by an employment tribunal, it must remit unless the error could not have affected the result, or the corrected result is compelled by existing findings and undisputed or indisputable facts. It must not make its own factual or merits assessment. A new point may be admitted only in exceptional circumstances. Failure to consider an issue is an error of law only if it was argued below or was so obviously relevant that a reasonable tribunal was bound to consider it. The appeal was dismissed because the proposed complaint about pursuing disciplinary proceedings was a new, fact-sensitive case.

The appellant, an employee of the respondent college, was dismissed after the governor of Sudbury Prison refused to permit his return following allegations made by a colleague. The Employment Tribunal found the dismissal fair for some other substantial reason, accepting that the college had tried to secure his return and alternative employment.

The Employment Appeal Tribunal dismissed the appellant’s appeal despite identifying factual errors in the tribunal’s reasoning. The appellant argued in the Court of Appeal that the case should have been remitted and that the college should have pursued the disciplinary allegations to a formal conclusion. The central issues were whether that contention was a new point and whether the EAT had applied the correct test for remittal.

1. Disposition. The appeal was dismissed unanimously. The only potentially arguable error concerned the failure to consider whether the college should have pursued formal disciplinary proceedings.
2. Remittal after an error of law. Laws LJ held that the EAT’s function is supervisory. Once it detects an error of law, it must remit unless the error could not have affected the result, or the corrected result is compelled by the employment tribunal’s findings, supplemented only by undisputed or indisputable facts. The EAT must not make its own factual assessment or decide the merits. This approach was consistent with Dobie v Burns [1984] IRLR 329, Hellyer Bros. Ltd v McLeod [1987] ICR 526, Willow Oak Developments v Silverwood [2006] IRLR 607 and O’Kelly v Trust House Forte plc [1984] QB 90.
3. New points. The EAT has a discretion to admit a new point, but only in exceptional circumstances. The issue must normally be a discrete question of law or otherwise capable of determination without fresh factual investigation. The appellant’s self-representation did not justify admission where remittal would substantially reopen the case.
4. Application. The contention that the college should have completed the disciplinary process was not distinctly advanced before the ET. The appellant had criticised the investigation and the handling of the allegations, but had not invited the ET to decide whether formal disciplinary proceedings were practicable or required. That issue involved fact and judgment, and was not so obvious that a reasonable tribunal was bound to consider it. There was therefore no arguable error of law. Underhill LJ added that, under section 35(1) of the Employment Tribunals Act 1996, the remittal rule concerns the proper use of the EAT’s powers rather than a formal jurisdictional restriction; the parties may consent to the EAT deciding the issue.

1. Court of Appeal (Civil Division), in [2014] EWCA Civ 449, dismissed the appeal from the Employment Appeal Tribunal.
2. Employment Appeal Tribunal, presided over by Mr Justice Keith, dismissed the appellant’s appeal on 20 February 2013.
3. Employment Tribunal, on 3 January 2012, dismissed the claims of unfair dismissal and detriment for making protected disclosures.