EAT Redundancy – Collective consultation and information. Serota QC J said: ‘In English v Emery Reimbold and Strick Ltd . . the Court of Appeal gave guidance as to the circumstances in which a Judge might be invited to amplify his reasons and findings where these are considered to be insufficient. The EAT has adopted the approach recommended by the Court of Appeal on a number of occasions and remitted cases to the ET for amplification of reasons at an early stage in the appeal process; see Adebowale v Peninsula Business Services (EAT/1135/02/DA) in which the President said that the Court of Appeal had
‘expressly encouraged Courts considering whether an appeal should proceed on grounds of alleged failure to make findings, or alleged absence of reasons, to consider referring the case back to the lower Court for clarification”.
We need not, therefore set out the dicta in English v Emery Reimbold and Strick.
In Re T (a child: contact) 2003 1 FLR 303 (a care case) the Court of Appeal took the question of seeking clarification from a first instance Judge a stage further. Arden LJ , having considered English v Emery Reimbold and Strick Ltd went on to say that the principle applied to appeals in care cases as well as to other appeals. She said: ‘In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well-established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective (CPR 1.3, which does not as such apply to these proceedings); and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result. I should make it clear that there are general observations for assistance in future cases, and that I make no criticisms of counsel in this case’.
In our opinion it is certainly good practice where parties are legally represented in Employment Tribunals, for advocates to ask the Tribunal to amplify its reasoning where it is considered that there has been a material omission in its findings of fact or in its consideration of the issues of fact and law before it. Where reasons are given extempore the application should be made at the time. If reasons are given in writing the request should be made as soon as possible after the reasons are received. We would encourage advocates to seek clarification from the ET promptly in any case where there might otherwise be an appeal based on alleged insufficiency of reasons. It is much easier for Tribunals to deal with requests for clarification when they are fresh in their minds and the amplification of insufficient reasons and finding will save the parties time and expense and may in some cases obviate the need for an appeal and subsequent remission of the case.
The approach we have set out above is wholly consistent with the overriding objective and the principles that should govern appeals before the EAT.’
Judges:
Serota QC J
Citations:
UKEAT/652/03, [2004] UKEAT 0652 – 03 – 1003, [2007] ICR 308
Links:
Citing:
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Adebowale v Peninsula Business Services Ltd EAT 20-Jan-2003
Burton J P said that the CA had ‘expressly encouraged Courts considering whether an appeal should proceed on grounds of alleged failure to make findings, or alleged absence of reasons, to consider referring the case back to the lower Court for . .
Cited – In re T (A Child: contact) CA 24-Oct-2002
The court considered an appeal in care proceedings, where it was felt that the judge’s reasons for his findings were inadequately set out. Arden LJ pointed out that the principles in Emery Reimbold applied also in care proceedings, and set out . .
Cited by:
Cited – Royle v Greater Manchester Police Authority EAT 27-Sep-2006
The claimant appealed dismissal of her claim for constructive dismissal. The tribunal had decided that she had waived and could not rely upon several matters placed before it.
Held: ‘(1) Where the appeal is based on alleged failure by the . .
Cited – Afolayan v MRCS Ltd EAT 23-Aug-2011
EAT UNFAIR DISMISSAL
Where an Employment Tribunal has been directed by the Employment Appeal Tribunal and by a Regional Employment Judge, to consider an application for costs of a hearing before a . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 10 June 2022; Ref: scu.194886