Lema v DHL Supply Chain Ltd

An Employment Tribunal must address material jointly instructed medical evidence and give adequate reasons where its conclusion appears inconsistent with that evidence. A failure to do so may require remission where the evidence bears on whether an employee was unable, rather than unwilling, to attend work and on connected discrimination, reasonable-adjustment, harassment and wages claims.

Ordinarily, a limited remission should be made to the tribunal which heard the case. A fresh tribunal is unnecessary unless there is a sound reason to displace that course, such as loss of confidence in the original tribunal or a fundamentally flawed hearing.

The Employment Tribunal dismissed the claimant's claims, apart from accrued holiday pay, after an eight-day hearing. The claims included unfair dismissal, unlawful deductions from wages, disability discrimination, failure to make reasonable adjustments and harassment.

On appeal, the respondent accepted that the Tribunal had not adequately explained its treatment of the jointly instructed report of Dr Liam Parsonage. The report was potentially inconsistent with the Tribunal's conclusion that the claimant had been unwilling, rather than unable through disability, to work.

The issue was the proper scope of remission and whether it should be to the original or a freshly constituted Tribunal.

1. Appeal allowed by concession and remitted to the same Tribunal. The respondent accepted that the Employment Tribunal had not sufficiently explained how it dealt with the jointly instructed medical report. If the Tribunal rejected the report, it gave no apparent reason. If it accepted it, its conclusion that the claimant was unwilling rather than unable to work was not adequately explained.

2. The omission was material. The medical evidence could affect the finding concerning the claimant's non-attendance from January 2016, the unlawful-deduction claim, and issue 12 of the Scott Schedule. That issue included claims under sections 15, 20 and 26 of the Equality Act 2010.

3. The remitted Tribunal must consider and make findings on Dr Parsonage's evidence, particularly paragraphs 65 to 74 of the report. It must give reasons and reconsider its earlier conclusions on the wages claim and all three causes of action in issue 12: harassment, failure to make a reasonable adjustment, and discrimination arising from disability.

4. Applying the usual approach in Sinclair Roche & Temperley v Heard [2004] IRLR 763, the same Tribunal should normally determine the remitted issue. There was no basis for doubting its impartiality or ability to approach the matter with an open mind. The error was confined to a narrow point in an otherwise careful and thorough decision; a fresh Tribunal would add delay, cost and difficulty.

5. The Tribunal may decide whether further evidence is essential, although the Employment Appeal Tribunal did not consider it likely to be needed.

• Employment Appeal Tribunal: Allowed the appeal and remitted limited issues to the same Employment Tribunal: [2018] UKEAT 0079_18_2808.

• Employment Tribunal, Watford: Judgment sent to the parties on 6 April 2017. It upheld only the accrued-holiday-pay complaint and dismissed the remaining claims.