Gainford Care Homes Ltd v Tipple & Anor (Rev 1)

A challenge that a tribunal failed to give reasons is distinct from a challenge to the legal correctness or rationality of its decision. The question is whether the reasons make clear how the tribunal reached its conclusion, enabling the parties to understand why they succeeded or failed and to assess any appeal. If the reasoning is sufficiently intelligible, an alleged failure to apply the correct principles or justify a different outcome concerns the substance, not the adequacy, of the reasons. Where permission to appeal is confined to reasons, an appellate court cannot reopen merits grounds refused below. Reasons may be sufficient where they address serious misconduct, the resulting risk to a fair hearing, proportionality and lesser measures.

Two employees brought employment claims after one was dismissed and the other left following alleged intimidation by the employer’s owners. During the Employment Tribunal hearing, further intimidating conduct occurred. The tribunal struck out the employer’s responses under rule 18(7)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 and debarred the employer from participating in both claims.

The Employment Appeal Tribunal dismissed the appeal in UKEAT/0171/13/RN, having allowed argument only on whether the tribunal had given adequate reasons. The central issue in the Court of Appeal was whether the tribunal’s reasons were sufficient, particularly in relation to participation in the remedies hearing, or whether the Court could examine the proportionality and substance of the debarring order.

1. Disposition. The appeal was dismissed unanimously. Lord Justice Moore-Bick gave the leading judgment, with Lord Justices McCombe and Beatson agreeing.
2. Scope of the appeal. The Employment Appeal Tribunal had refused permission on the substantive grounds, including the alleged irrationality and disproportionality of the Employment Tribunal’s order. Permission was granted only on grounds alleging failure to give reasons. The Court of Appeal was therefore confined to that question and could not reopen the merits of the discretionary order.
3. Reasons duty. The essential distinction was between the decision itself and the reasons for it. Applying Meek v City of Birmingham District Council [1987] EWCA Civ 9, the question was whether the tribunal had made its route to the conclusion sufficiently clear for the parties to understand why they had succeeded or failed. The decision would not be defective for want of reasons merely because it might be legally wrong. An alleged failure to apply correct principles or reach a different result challenged the substance of the decision. The Court also referred to English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2003] IRLR 710.
4. Strike-out context. The order had been made under rule 18(7)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The tribunal had found extremely serious conduct connected with the proceedings, concluded that a fair trial had become impossible, considered proportionality and rejected lesser measures. The Court noted that alternative protective measures might have been considered on a merits appeal, but that issue was not before it. The approach described in Abegaze v Shrewsbury College of Arts & Technology [2009] EWCA Civ 96 was therefore not applied to reopen the sanction’s merits.
5. Application. The Employment Tribunal’s reasons showed that it understood the seriousness of the conduct, its effect on the witness, the need for a fair hearing and the need for a proportionate response. Its rejection of the proposed lesser measures was sufficiently explained. The Employment Appeal Tribunal was right to dismiss the appeal.

• Court of Appeal (Civil Division) — In [2016] EWCA Civ 382, the appeal was dismissed. The court held that the appeal was confined to the sufficiency of the Employment Tribunal’s reasons.
• Employment Appeal Tribunal — In UKEAT/0171/13/RN, the appeal was dismissed. Permission had been granted only on grounds concerning compliance with the reasons duty, and the tribunal’s reasons were held sufficient.
• Employment Tribunal — The employer’s responses were struck out under rule 18(7)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, and the employer was debarred from further participation. Both claims then succeeded. An application for review was dismissed in July 2013.