Burrell v Micheldever Tyre Services Ltd

The Court of Appeal considered whether the Employment Appeal Tribunal (EAT) was entitled, after identifying a legal misdirection in the Employment Tribunal's (ET) approach to victimisation under section 2(1) of the Race Relations Act 1976, to substitute its own conclusion on liability rather than remit the matter to the ET. The EAT had concluded there was no victimisation; the Court of Appeal held that, applying the established authorities (including Dobie and Jafri), the EAT was not entitled to substitute its own factual assessment where the corrected law did not lead to a single inevitable conclusion on the existing findings of fact.

Accordingly the Court allowed the appeal, held that remittal under section 35 of the Employment Tribunals Act 1996 was required, and directed that the ET should reconsider the victimisation issue (and, if necessary, unfair dismissal under section 98(1)(b) of the Employment Rights Act 1996) without the prior legal misdirection.

Background and facts:

• The claimant, employed as a tyre fitter from November 2008 until dismissal in July 2010, complained of racial banter, made a grievance and later alleged direct race discrimination, victimisation and unfair dismissal. The ET found direct discrimination and victimisation in the claimant's favour but rejected unfair dismissal; a remedies hearing was adjourned.
• Key factual findings included that the claimant had raised a grievance about racial banter, the employer had proposed relocation from Fareham to Micheldever and ultimately dismissed the claimant after he refused to accept relocation; the ET also found the relocation was a reasonable response and that the dismissal was for some other substantial reason within section 98(1)(b) Employment Rights Act 1996.

Procedural posture and nature of the application:

• The employer appealed to the EAT which identified a legal error in the ET's test for victimisation (in particular the ET's treatment of the relevance of motive under section 2(1) Race Relations Act 1976) and, rather than remitting, the EAT concluded on the evidence that there had been no victimisation.
• The claimant appealed to the Court of Appeal seeking a ruling that the EAT should have remitted the matter to the ET rather than substitute its own conclusion; he also sought remittal of the unfair dismissal issue if remittal on victimisation was required.

Issues framed by the Court:

• Whether, having identified an express misdirection of law by the ET, the EAT was entitled to decide the issue of victimisation itself or was required to remit to the ET under the established approach (Dobie, McLaren and Jafri).
• Whether, if remittal was required on victimisation, the unfair dismissal issue should also be remitted.

Court's reasoning and conclusion:

• The Court reviewed the long-established principle that an appellate tribunal must normally remit unless, despite the misdirection, the tribunal's conclusion is "plainly and unarguably right" or the correct application of the law would inevitably lead to one outcome. The Court noted later authorities that discussed possible relaxation of that principle but considered the recent authority in Jafri reaffirming the conventional approach to be binding on this court.
• Applying that approach, the Court found the EAT had gone beyond identifying a legal error and had made its own factual assessment when it concluded there was no foundation in the evidence for the ET's finding that the grievance formed part of the reason for relocation. The Court concluded that the corrected legal test did not produce only one permissible conclusion from the ET's findings and that the EAT therefore erred in substituting its own conclusion rather than remitting.
• The Court allowed the appeal, remitted the victimisation issue to the original ET for redetermination without the legal misdirection and directed that, if the ET re-finds victimisation, it should revisit unfair dismissal. The Court indicated no further evidence was likely required and that the remittal should be to the original tribunal if possible.

Appeal allowed. The Employment Appeal Tribunal erred in law by substituting its own conclusion on victimisation rather than remitting the matter to the Employment Tribunal after identifying an express misdirection of law. The case is remitted to the original Employment Tribunal to reconsider victimisation (and, if necessary, unfair dismissal) without the legal error.

Employment Tribunal: initial hearing found direct race discrimination and victimisation in favour of the claimant but dismissed the unfair dismissal claim; appeal to the Employment Appeal Tribunal (UK EAT 0368 & 0427/DM) identified a legal misdirection and substituted a finding of no victimisation; appeal to the Court of Appeal ([2014] EWCA Civ 716) allowed and the case remitted to the ET.