PROCEDURE

Barke v SEETEC Business Technology Centre Ltd: [2005] EWCA Civ 578

CA: Brooke, Buxton and Dyson LJJ: 16 May 2005

On the applicant's appeal against the dismissal by the employment tribunal of her complaints of disability discrimination and unfair dismissal, the Employment Appeal Tribunal made an order requesting the employment tribunal chairman "to provide the tribunal answers to the following questions arising out of the notice of appeal", pursuant to the practice set out in Burns v Royal Mail Group plc (formerly Consignia plc) [2004] ICR 1103.

The applicant appealed on the ground that the appeal tribunal did not have jurisdiction to make an order seeking amplification of reasons given by an employment tribunal.

The Court of Appeal held:
The phrase "for the purpose of disposing of an appeal" in section 35(1) of the Employment Tribunals Act 1996 made it clear that the Employment Appeal Tribunal could only exercise the powers given by paragraphs (a) and (b) of that subsection when finally disposing of an appeal and at no other stage. Accordingly, section 35(1) did not give the appeal tribunal jurisdiction to make a direction such as that under appeal. But, the wording of rule 30(3)(b) of the Employment Tribunals Rules of Procedure 2004, which permitted the appeal tribunal to request written reasons in relation to any judgment or order at any time, appeared to provide appropriate authority. In any event, since there was no prohibition in the statute or the rules on the Employment Appeal Tribunal inviting an employment tribunal to clarify or supplement its written reasons, the appeal tribunal would be acting lawfully in so doing.
The overriding objective of dealing with cases justly by, inter alia, saving expense and ensuring that cases were dealt with expeditiously would be frustrated by an unduly restrictive application of the procedure set out in Burns. But it would not be appropriate where the inadequacy of reasoning was on its face so fundamental that there was a real risk that supplementary reasons would be reconstructions of proper reasons; nor would it be appropriate where there had been allegations of bias.

The appeal was dismissed.

Appearances: Oliver Hyams (Brian Barr, Manchester) for the applicant; Bruce Gardiner (Wollastons, Chelmsford) for the employer; Nicholas Underhill QC (Treasury Solicitor) for the Department of Trade and Industry, intervening.