Chief Constable of Kent Constabulary v Bowler

A tribunal must comply with the scope of a remission, construed in the light of the appellate judgment and order. Where the appellate tribunal has expressly left the reception of further evidence to the tribunal, an order permitting such evidence does not exceed the remitted jurisdiction.

Ordinarily, a remission does not permit either party to repair evidential omissions or obtain a second opportunity to present its case, unless the Ladd v Marshall conditions are met. Exceptionally, however, the tribunal may permit further evidence as a case-management decision where fairness and the overriding objective justify it. That discretion is fact-sensitive and may properly be exercised where a material issue was not understood to require determination and relevant disclosure was improperly withheld.

The Claimant, a serving police officer, had succeeded on claims including victimisation. On a previous appeal, the Employment Appeal Tribunal set aside four findings of victimisation against DS McClean because the Employment Tribunal had not properly addressed whether he knew that the Claimant's race grievance was a protected act. The allegations were remitted for redetermination.

The Employment Tribunal later permitted both parties to adduce further evidence concerning DS McClean's knowledge of the race grievance. The Chief Constable appealed that case-management order. The central questions were whether the order exceeded the scope of the remission and whether the Tribunal could allow evidence that had been available at the original hearing.

1. Appeal dismissed. The Employment Tribunal did not exceed the jurisdiction conferred by the remission. Its reconsideration remained confined to the four remitted victimisation allegations and the questions whether DS McClean knew of the race grievance and acted because of it.
2. The word “reconsideration” did not itself determine whether the Tribunal was confined to the evidence previously heard. The earlier appellate judgment had anticipated that further evidence would probably be unnecessary, but expressly left it to the Tribunal, after receiving the parties’ representations, to decide whether to entertain it. Read with that judgment, the remission order did not preclude the case-management order.
3. Aparau v Iceland Frozen Foods plc was distinguishable. There, the tribunal had decided a new unfair-dismissal issue outside a narrowly confined remission. Here, the proposed evidence concerned issues expressly remitted.
4. Mrs Justice Simler accepted that a remittal will ordinarily not allow either party to cure an evidential deficiency or take a second opportunity to advance evidence that could and should have been adduced initially, unless the Ladd v Marshall conditions are met. The present circumstances were exceptional. The knowledge issue had not been understood by the parties or the original Tribunal to require determination, and relevant unredacted disclosure indicating that DS McClean received material identifying the grievance as race-related should have been provided.
5. The decision whether to admit the further evidence was a fact-sensitive case-management matter governed by fairness and the overriding objective. The Employment Judge had considered fairness to both parties and acted within the wide margin of discretion. The Claimant advanced no new allegation; the further evidence concerned the existing victimisation allegations.

• Employment Appeal Tribunal: The appeal against the case-management order was dismissed: [2018] UKEAT 0308_17_1201.
• Employment Tribunal: On 22 September 2017, the Tribunal permitted further evidence on the remitted victimisation allegations.
• Earlier Employment Appeal Tribunal proceedings: On 22 March 2017, four findings of victimisation against DS McClean were set aside and remitted because the knowledge issue had not been properly addressed.
• Employment Tribunal: By a reserved judgment promulgated on 5 April 2016, the Tribunal upheld, among other matters, the Claimant's victimisation claims.