The claimant’s complaint of unfair dismissal for making a protected disclosure had been rejected by the ET and EAT. The court was asked whether the claimant could rely upon a point not previously raised.
Held: The appeal failed. Where a court identified an error of law in a decision it must remit the case unless it felt able to decide without making any judgment as to the facts or the merit of the case. Where more than one outcome after correction of the the tribunal’s error of law, the decision must be left to the Tribunal.
Laws LJ said: ‘I must confess with great respect to some difficulty with the ‘plainly and unarguably right’ test elaborated in Dobie. It is not the task of the EAT to decide what result is ‘right’ on the merits. That decision is for the ET, the industrial jury. The EAT’s function is (and is only) to see that the ET’s decisions are lawfully made. If therefore the EAT detects a legal error by the ET, it must send the case back unless (a) it concludes that the error cannot have affected the result, for in that case the error will have been immaterial and the result as lawful as if it had not been made; or (b) without the error the result would have been different, but the EAT is able to conclude what it must have been. In neither case is the EAT to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the ET, supplemented (if at all) only by undisputed or indisputable facts. Otherwise, there must be a remittal.’
Underhill LJ said: ‘If, once the ET’s error of law is corrected, more than one outcome is possible, the authorities are clear that it must be left to the ET to decide what that outcome should be, however well-placed the EAT may be to take the decision itself.’
Laws, Underhill LJJ, Sir Timothy Lloyd
[2014] EWCA Civ 449, [2014] WLR(D) 178
Bailii, WLRD
England and Wales
Citing:
Cited – Dobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .
Appeal from – Jafri v Secretary of State for Justice and Another EAT 20-Feb-2013
jafri_ssjEAT2013
EAT Unfair Dismissal : Reasonableness of Dismissal
Unfair dismissal – attitude of third party making continued employment of employee impossible – whether tribunal considered whether employer took into . .
Cited by:
Cited – Doughty v The Secretary of State for Work and Pensions EAT 22-May-2014
EAT Practice and Procedure : Amendment – The Employment Judge refused an application for permission to amend the ET1 to claim victimisation. She approached the application on the footing that there was no clear . .
Cited – Way v Spectrum Property Care Ltd CA 22-Apr-2015
The appellant had been dismissed after using the company email to forward an inappropriate email in breach of the company’s policies. Later he was disciplined for making an appointment in breach of the company’s procedures. He again misused the . .
Cited – Burrell v Micheldever Tyre Services Ltd CA 23-May-2014
Maurice Kaye LJ considered the observations of Elias LJ in the case of Tilson v Alstom Transport and the impact of Jafri, saying: ‘However, even within the confines of the conventional approach, the Employment Appeal Tribunal can contain its . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 02 December 2021; Ref: scu.523829