30 May 2014 #Employment
If you have ever read a Tribunal judgment and been confused over how it reached its decision, it may not be your fault. One of the few grounds of appeal open to a party in the Employment Tribunal system is if the Tribunal fails to give adequate reasons for its decision. As the Court of Appeal has explained:
“...although a Tribunal decision is not required to be an elaborate formalistic product of refined legal draftmanship, it must nonetheless contain an outline of the facts of the case; a summary of the tribunal’s basic factual conclusions; and a statement of reasons which led it to reach its conclusions on the facts as found. The parties are entitled to be told why they have won or lost, and the tribunal’s reasoning must enable an appellate court to determine whether any question of law arises.”
If a party appeals on this ground, then the Employment Appeal Tribunal has the power to ask the original Tribunal to clarify its decision. This is called the “Burns procedure” after the case that set the precedent. It is recognised that the “Burns procedure” may not always be appropriate; a Tribunal could in theory tailor its responses to put its decision in the best possible Light or, if the original reasons were wholly inadequate, the Tribunal may try to construct reasons after the event.
The Court of Appeal was recently asked to consider the adequacy of reasons in the case of The Co-operative Group v Baddeley. This involved an unfair dismissal case in which Mr Baddeley successfully claimed that due to his whistleblowing he had been automatically unfairly dismissed by the Co-op, as well as having suffered a detriment through breaches of his contract. The Tribunal also found that even if he had not been automatically unfairly dismissed his dismissal would have been unfair anyway.
Despite the Tribunal judgment running to 35 pages both the EAT and subsequently the Court of Appeal agreed that it was inadequate, particularly as it contained little reference to the employer’s investigation into the allegations. In spite of this conclusion the EAT did not uphold the appeal.
After requesting clarification from the original Tribunal, the EAT believed the basis for the decision had been adequately explained. The Co-op however appealed the EAT’s decision and used the “Burns Procedure” to clarify the original Tribunal judgment which, it argued, was wholly inadequate.
These proceedings must have made uncomfortable reading for the original Tribunal. The EAT’s description of the original judgment as “not the Tribunal’s finest hour” was subsequently described by the Court of Appeal as “clearly some understatement”.
In addition to the confused and confusing reasoning in the judgment, the Court of Appeal took great umbrage with the Tribunal’s language, describing it as “tabloid” with phrases such as “stitch-up”, “the strong stench of conspiracy”, “Machiavellian intrigue” and a “brutal act of management homicide”. The Court of Appeal stated that the headings in the original reasons should help structure the Tribunal’s decisions and make it easier to understand but further reading of the content proved this was not the case. This may not be too surprising given headings in the judgment such as “Wrong place, wrong time?”, “The Damning of the Claimant” and “Who will Rid me of this Meddlesome Priest?”
The Tribunal had completely upheld the Claimant’s case that the managers who dealt with his dismissal investigation and subsequent appeal were carrying out a dismissal choreographed by a senior manager who saw the Claimant as a troublemaker due to his protected disclosure.
The Court of Appeal believed there may be some merit in the allegations that the two managers had acted in bad faith and had been accomplices in a conspiracy. The Tribunal however had failed to adequately give a basis for its findings that the managers had been persuaded to implement an outcome desired by the senior manager.
With some regret, the Court of Appeal remitted the case back to a different Tribunal to be re-heard in its entirety. Given the inadequacies in the original judgement however the Court of Appeal felt it had no alternative.
Besides serving as a lesson to Tribunal judges on how not to prepare written reasons for their judgments, the case also underlines the importance of providing robust and objective evidence in order to demonstrate serious allegations, such as those involving an alleged conspiracy.
CAS Paralegal on secondment to Clarkslegal LLP