Burrell v Micheldever Tyre Services Ltd

Where the Employment Appeal Tribunal identifies an error of law, it must remit the case unless the error could not have affected the result or the correct result necessarily follows from the Employment Tribunal’s findings, supplemented only by undisputed or indisputable facts. The appeal tribunal must neither make its own factual assessment nor determine the merits afresh.

An apparently reasonable employer response does not necessarily exclude a finding that treatment occurred by reason of a protected act. If more than one inference remains legitimately open on the facts, the issue belongs to the Employment Tribunal and must be remitted.

The Employment Tribunal upheld the employee’s claims of direct race discrimination and victimisation but rejected his unfair dismissal claim. Its victimisation decision incorrectly treated the reason or motive for the less favourable treatment as immaterial under section 2 of the Race Relations Act 1976.

The Employment Appeal Tribunal, in UK EAT 0368 & 0427/DM, identified that error but substituted a finding that there had been no victimisation. It considered that the grievance had played no part in the employer’s decision to relocate the employee.

The employee appealed. The central issue was whether only one lawful outcome followed from the Employment Tribunal’s findings, or whether the Employment Appeal Tribunal had impermissibly made its own factual assessment and should instead have remitted the case.

1. Appeal allowed. The Employment Appeal Tribunal had correctly identified the Employment Tribunal’s error concerning the causative requirement for victimisation. It nevertheless erred by substituting its own conclusion rather than remitting the issue.

2. The Court followed Jafri v Lincoln College [2014] EWCA Civ 449. After detecting an error of law, the Employment Appeal Tribunal must remit unless the error could not have affected the result or the correct result necessarily follows from the Employment Tribunal’s findings, supplemented only by undisputed or indisputable facts. It may neither make a factual assessment for itself nor decide what result is right on the merits.

3. The employer’s decision to relocate the employee had been described as reasonable and arguably the best available solution. In accordance with Zafar v Gloucester City Council [1998] IRLR 36, however, the reasonableness of the decision did not necessarily exclude an inference that it was, at least partly, taken by reason of the protected grievance.

4. The chronology permitted the inference drawn by the Employment Appeal Tribunal: that the relocation resulted from the employee’s unexpected return to work rather than his grievance. That was not the only permissible inference. It remained open to a properly directed Employment Tribunal to find the necessary causal connection. The Employment Appeal Tribunal had therefore crossed the boundary between identifying legal error and making its own factual assessment.

5. The conventional restriction on substitution remained binding despite the introduction of the overriding objective and changes to the composition of employment tribunals. The Employment Appeal Tribunal may nevertheless apply the rule robustly, act by consent under section 35(1)(a) of the Employment Tribunals Act 1996, and limit the issues or evidence on a necessary remittal.

6. The victimisation issue was remitted, preferably to the Employment Tribunal as originally constituted and without further evidence. It was to reconsider its original findings under the correct legal direction. The unfair dismissal issue was also to be revisited if, and only if, victimisation was established.

1. Court of Appeal (Civil Division): In [2014] EWCA Civ 716, allowed the employee’s appeal and remitted the victimisation issue to the Employment Tribunal. The unfair dismissal issue was to be reconsidered only if victimisation was established.
2. Employment Appeal Tribunal: In UK EAT 0368 & 0427/DM, identified an error of law in the victimisation decision but substituted its own conclusion that the claim failed instead of remitting it.
3. Employment Tribunal: Upheld claims of direct race discrimination and victimisation, but dismissed the unfair dismissal claim. Its victimisation analysis misdirected itself by treating the reason or motive for the treatment as immaterial.