Jafri v Lincoln College

The Employment Appeal Tribunal supervises legality rather than deciding the merits of employment disputes. After identifying an error of law, it must remit unless the error could not have affected the result or the corrected result is inevitable. Its conclusion must rest on the employment tribunal’s findings, supplemented only by undisputed or indisputable facts. Being equally well placed to decide an issue does not justify substitution where several outcomes remain possible.

A new point requires exceptional circumstances. A tribunal’s omission to investigate an unraised factual argument establishes legal error only if a reasonable tribunal was bound to consider it. Previous self-representation does not itself justify substantial relitigation. The court also indicated that the appeal tribunal may determine an issue with the parties’ consent.

Mr Jafri was employed by Lincoln College as Deputy Learning and Skills Manager at Sudbury Prison. Dianna Corbett, the Learning and Skills Manager, complained about his conduct. The prison governor excluded him pending investigation. After Ms Corbett left the college, it upheld Mr Jafri’s grievance that her allegations were false, but the formal disciplinary process was not completed. The governor continued to exclude him, and attempts to relocate him failed. The college dismissed him.

The employment tribunal dismissed his unfair dismissal and protected disclosure claims. The Employment Appeal Tribunal dismissed his appeal despite identifying factual errors and inappropriate findings about the truth of Ms Corbett’s allegations. Only unfair dismissal remained before the Court of Appeal.

Mr Jafri challenged the appeal tribunal’s refusal to remit. He also argued that the employment tribunal should have considered whether completing the disciplinary process could have secured his return to the prison. The issues were the limits of appellate substitution and whether that argument had been advanced below or could exceptionally be introduced on appeal.

The appeal was dismissed unanimously.

1. The Employment Appeal Tribunal’s function was to ensure that employment tribunal decisions were lawfully made. It could uphold a decision affected by legal error where the error could not have affected the result. Alternatively, it could substitute a different result where that result necessarily followed once the error was corrected. Either conclusion had to flow from the tribunal’s findings, supplemented only by undisputed or indisputable facts. The appeal tribunal could make no independent factual assessment or judgment on the merits. Otherwise, remittal was required. The formulation in Dobie v Burns was explained consistently with that approach, which accorded with Hellyer Bros. Ltd v McLeod, Willow Oak Developments v Silverwood and O’Kelly v Trust House Forte plc (paras 19–24).

2. The requirement applied beyond assessments of dismissal fairness. As Bennett v London Borough of Southwark demonstrated, it also governed other decisions involving factual evaluation or discretion. Where more than one outcome remained possible, the appeal tribunal’s being equally well placed to decide was insufficient. The broader suggestions in Buckland v Bournemouth University could not justify that course, although concerns about unnecessary cost and delay were accepted (paras 43–46).

3. The appeal tribunal had applied the correct test. Subject to the proposed argument about completing disciplinary proceedings, the existing findings compelled the conclusions that the college had considered the injustice, tried to persuade the governor to readmit Mr Jafri and made proper efforts to relocate him. The identified errors could not alter those conclusions (paras 24–25).

4. Whether the college should have completed disciplinary proceedings raised questions of fact and judgment. There were no findings about practicability, including Ms Corbett’s availability to participate. If that argument were admitted, further evidence and findings would be required. Its omission established legal error only if a reasonable tribunal was bound to consider it. General complaints about the investigation had not presented that distinct argument, and the tribunal was not bound to formulate it itself (paras 26–29, 34–39).

5. The discretion to admit a new point arose only exceptionally. No exceptional circumstances justified admission here. Mr Jafri’s previous self-representation did not warrant a remittal which would substantially reopen the case rather than correct an established legal error (paras 30–31, 39–40).

6. Underhill LJ, whose additional observations Sir Timothy Lloyd adopted, indicated that the appeal tribunal should scrutinise whether several outcomes were reasonably possible. Even where they were, it could decide with the parties’ consent, which should be encouraged in appropriate cases. Section 35(1) of the Employment Tribunals Act 1996 supplied the power. The usual remittal requirement concerned its proper exercise rather than a formal jurisdictional restriction (paras 47–48).

• Court of Appeal (Civil Division): On 16 April 2014, dismissed the appeal in [2014] EWCA Civ 449 . The Employment Appeal Tribunal had applied the correct remittal test, and the proposed new argument disclosed no arguable error of law.
• Employment Appeal Tribunal: On 20 February 2013, Keith J’s tribunal dismissed the appeal. It identified errors in the employment tribunal’s reasoning but concluded that they did not affect the result.
• Employment Tribunal: On 3 January 2012, dismissed the unfair dismissal and protected disclosure detriment claims. Only the unfair dismissal claim remained before the Court of Appeal.