Choksi v Royal Mail Group Ltd

An Employment Tribunal on remittal must determine the issues specified by the Employment Appeal Tribunal’s order. Its jurisdiction is statutory and cannot be enlarged, confined or redirected by the parties’ agreement.

The tribunal is bound by conclusions reached in the unappealed appellate decision. It cannot revisit them, substitute a different factual premise, or decline the remitted inquiry because it considers the appellate reasoning ill-founded. A finding that a dismissing officer would not have dismissed for one allegation alone does not mean that the dismissal was solely for another allegation.

Where the remitted issues require primary findings of fact and more than one outcome remains possible, the proper course is remittal. A fresh tribunal is appropriate where the history gives rise to a real concern that the original tribunal may not approach the issues with an open mind.

The claimant, a long-serving manager, was dismissed for gross misconduct after obscene files were found in his work cloud-storage account and it was found that he had shared his password. The original Employment Tribunal held the dismissal fair, although it found the employer had not reasonably concluded that he had downloaded the files.

On an earlier appeal, the EAT remitted the case because the dismissing officer considered password sharing alone insufficient to justify dismissal, whereas the appeal officer considered it sufficient. The remittal required the ET to determine who dismissed the claimant and, if the appeal officer did so, whether the appeal could impose the harsher outcome without notice and whether dismissal was fair under section 98(4) of the Employment Rights Act 1996.

On remittal, the ET instead treated the prior EAT decision as factually mistaken and held that the specified inquiry did not arise. The claimant appealed again.

1. Appeal allowed. The ET erred in law by failing to comply with the earlier EAT remittal order. Its task was to determine the questions that order identified, not to conduct a different inquiry into whether the dismissing officer had dismissed for one or two acts of misconduct.

2. The earlier EAT had held that the dismissing officer would not have dismissed for password sharing alone. It did not hold that he dismissed solely for the cloud-storage allegation. The ET’s inference from the first proposition to the second was a non sequitur. Its ensuing attempt to disprove that second proposition was irrelevant to the remittal.

3. The earlier EAT decision had neither been appealed nor reconsidered. Both the ET and this EAT were bound by its interpretation of the dismissing officer’s rationale. It was therefore illegitimate for the ET to call that interpretation ill-founded, state that the remitted question did not arise, or criticise the appellate decision as based on a misconception.

4. The parties’ recorded agreement with the ET’s course could not alter the ET’s statutory jurisdiction. If the scope of the remittal had genuinely been unclear, the ET should have sought clarification from the EAT.

5. The EAT could not itself make the outstanding primary findings of fact. Nor was there only one possible outcome. The case was remitted again, including the question of contribution if it arose. It was remitted to a new ET, because the original ET’s approach created a real risk that the claimant would reasonably doubt whether it could approach the issues with an open mind.

• Employment Appeal Tribunal: The earlier appeal succeeded. The case was remitted by an order dated 21 January 2016 for specified questions concerning the dismissal, fairness under section 98(4) of the Employment Rights Act 1996, and remedy if necessary.
• Employment Tribunal, London (Central): On remittal, the ET held that the claimant had been fairly dismissed in a judgment sent on 10 January 2017. This EAT allowed the second appeal and remitted the matter to a new ET.
• Employment Tribunal, London (Central): In the original decision, the ET held the dismissal fair, subject to its findings concerning the allegation of downloading files.