Nwakwu v Westminster City Council

There is no automatic rule that a successful appeal must be remitted to the same tribunal.

Where fairness, the passage of time, the composition of the original tribunal and the limited factual issues make rehearing by the same tribunal inappropriate, the appeal court may remit to a fresh tribunal.

The familiar guidance in [2004] IRLR 763 remains the proper basis for this exercise.

The appellant, an agency worker, appealed from an Employment Tribunal reserved judgment delivered 18 July 2017 which dismissed his claims.

The respondent conceded the permitted grounds of appeal that challenged the Tribunal's treatment of time limits under the Agency Workers Regulations 2010.

The sole live issue on appeal was the appropriate disposal and whether the matter should be remitted to the original tribunal or to a fresh tribunal.

The Employment Appeal Tribunal applied prior authority and remitted the discrete Agency Workers Regulations issues to a fresh judge sitting alone.

1. The appeal was conceded on the four permitted grounds and was therefore allowed on those grounds.
2. The court applied the guidance in [2004] IRLR 763 when deciding whether to remit the matter for rehearing.
3. The court identified relevant factors as: the significant passage of time since the original hearing; the difference in appropriate tribunal composition for AWR claims; the limited and largely agreed factual issues to be reheard; and the claimant's anxiety about confidence in the original panel. These factors rebutted the presumption in favour of remitting to the same tribunal (see paras [2]; [11]).
4. The court held that a fresh Employment Judge sitting alone should determine the discrete AWR issues and any related assessment of time limits. Remittal to a fresh tribunal would conserve resources and avoid needless rehearing of unrelated discrimination matters (see paras [9]; [11]).
5. Disposition: appeal allowed on the conceded grounds and remitted to a fresh Employment Tribunal for rehearing on the specified Agency Workers Regulations issues.

• Employment Tribunal Reserved Judgment and Reasons dismissing all claims (sent 18 July 2017).
• Employment Appeal Tribunal Appeal heard and disposed of on 17 September 2018; appeal allowed in part and remitted to a fresh Employment Tribunal for rehearing on the AWR issues.