Wolfe v North Middlesex University Hospital NHS Trust

The Employment Appeal Tribunal has limited jurisdiction to entertain appeals only from a decision of an Employment Tribunal. A working meaning of "decision" is a determination that finally disposes of a claim or of an issue capable of finally disposing of a claim. Appeals are not a vehicle for successful parties to challenge immaterial findings of no general significance. Where an Employment Tribunal has omitted to consider a significant issue or to give adequate reasons, the proper first step is to seek amplification or correction from the Employment Tribunal. If necessary, the EAT will remit the question for that purpose.

The appellant appealed against an ET decision dismissing claims for unfair dismissal and disability discrimination. The appellant alleged the ET failed to consider whether her impairment should be treated as continuing because it was likely to recur under paragraph 2(2) of Schedule 1 to the Equality Act 2010. The respondent cross-appealed against obiter findings. The EAT referred a discrete question on recurrence back to the ET under the Burns-Barke procedure. The EAT held it had no jurisdiction to entertain the respondent's cross-appeal against an immaterial obiter finding.

(1) Overall disposition: the EAT referred the discrete question about likelihood of recurrence back to the Employment Tribunal under the Burns-Barke procedure and dismissed the respondent's cross-appeal for want of jurisdiction. (See paras [72]; [103].)

(2) Meaning of "decision": by analogy with Rule 1(3) of the Employment Tribunal Rules of Procedure 2013, a "decision" for the purposes of section 21 of the Employment Tribunals Act 1996 is a determination which finally disposes of a claim or of an issue capable of finally disposing of a claim. The EAT will treat that working definition as a control on appeals. (See paras [90]-[92]; [99]-[100].)

(3) Remedy for material omission or inadequate reasons: where a party considers the ET omitted to deal with a significant issue or gave inadequate reasons, the party should first request amplification or correction from the Employment Tribunal promptly. The EAT will normally expect that course to be followed and may remit for clarification rather than decide the matter itself. Failure to adopt that course may have costs consequences. (See paras [74]-[86].)

(4) Recurrence under Schedule 1 paragraph 2(2) Equality Act 2010: the provision treats an impairment as continuing where its substantial adverse effects are likely to recur. Whether that provision was argued below and, if so, what conclusion the ET reached is a question for the ET. The EAT therefore referred the point back to the ET under the Burns-Barke procedure. (See paras [71]-[73]; [55]-[56].)

(5) Cross-appeal jurisdiction: the EAT has no jurisdiction, as a general rule, to entertain an appeal by a successful party attacking immaterial findings or obiter remarks that do not form part of the operative decision. The respondent's cross-appeal challenged an obiter view about "stress"; that ground was dismissed for want of jurisdiction. (See paras [88]-[101].)

(6) Orders: the question on likelihood of recurrence is remitted to the Employment Tribunal for clarification under the Burns-Barke procedure. The respondent's cross-appeal is dismissed. (See paras [72]; [103].)

1. Employment Appeal Tribunal: Judgment handed down 9 April 2015. Referred the question of likelihood of recurrence back to the Employment Tribunal under the Burns-Barke procedure and dismissed the respondent's cross-appeal. (See paras [1]-[3]; [72]; [103].)
2. Employment Tribunal (Watford): Original judgment dated 20 July 2013; Reasons dated 8 August 2013. Dismissed claims for unfair dismissal and disability discrimination. (Referred at paras [1]-[3]; [31]-[41].)