Western Union Payment Services UK Ltd v Anastasiou

Where an Employment Appeal Tribunal identifies a material error of law, it must remit the case to the Employment Tribunal unless the error could not have affected the result or the only lawful result is apparent from the Employment Tribunal’s findings and undisputed or indisputable facts. The Appeal Tribunal must not resolve contested factual matters or decide the merits itself.

Where the original reasons do not reveal the basis for an inference of causation, and it remains possible that further reasoning or application of the correct test could lead to more than one outcome, remission is required. Remission to the same tribunal may be appropriate where the parties agree and the applicable guidance supports it.

The Respondent employer appealed against an Employment Tribunal decision concerning protected-disclosure detriments suffered by the Claimant. In the substantive appeal, the Employment Appeal Tribunal allowed the appeal in part. It held that the Tribunal had erred in its approach to causation and had acted contrary to natural justice when recasting or adding detriments without allowing submissions.

This disposal hearing concerned whether the protected-disclosure detriment findings should be quashed or remitted. The central issue was whether the Appeal Tribunal could determine that the only possible outcome was dismissal, or whether more than one outcome remained reasonably possible.

1. Appeal allowed in part; case remitted to the same Employment Tribunal.

2. Applying Jafri v Lincoln College, [2014] EWCA Civ 449, the Appeal Tribunal could not decide the merits merely because it had identified legal errors. Remission was necessary unless the errors were immaterial or the lawful result necessarily followed from the Tribunal’s findings and undisputed or indisputable facts.

3. The substantive appeal had not established that there was no evidential basis upon which protected disclosure could materially influence the impugned treatment. A final decision-maker need not personally know of the disclosure if an organisational culture or chain of command nevertheless materially influenced the treatment.

4. The Tribunal’s reasons did not reveal how it had drawn a causal link between the disclosure and the detriments. That deficiency might mean that it had failed to apply the correct question, had inadequately explained its reasoning, or had reached a perverse conclusion. Only the last possibility would necessarily mean that there was a single outcome. In relation to the fourth detriment, the Tribunal appeared to have applied a “but for” test rather than asking whether the disclosure materially influenced the decision, but the Appeal Tribunal could not determine the factual outcome for itself.

5. As more than one outcome was reasonably possible, the matter had to return to the fact-finding tribunal. The parties agreed that any remission should be to the same tribunal. Applying Sinclair Roche Temperley v Heard, [2004] IRLR 763, remission to that tribunal was appropriate.

• Employment Appeal Tribunal: At the substantive appeal, judgment was handed down on 21 February 2014 and the employer’s appeal was allowed in part. At this disposal hearing, the protected-disclosure detriment issues were remitted to the same Employment Tribunal.
• Employment Tribunal: Its decision on protected-disclosure detriments was challenged for errors concerning causation and natural justice.