Appeal No. UKEAT/0873/02/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 January 2004

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR D J HODGKINS CB
MISS G MILLS

MISS M BURNS	APPELLANT

(1) ROYAL MAIL GROUP PLC (FORMERLY CONSIGNIA PLC)  
(2) MR K HUMPHREY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

BURNS -v- CONSIGNIA PLC (No 2)

Revised 

	APPEARANCES

For the Appellant	MR J HORAN
(of Counsel)
Instructed by:
Messrs Webster Dixon
Solicitors
21 New Fetter Lane
London EC4A 1AW	
For the Respondents	MS S PALMER
(of Counsel)
Instructed by:
Royal Mail PLC Legal Services
Impact House
2 Edridge Road
Croydon
Surrey CR9 1PJ	

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1	This has been the adjourned hearing of an appeal in the case of Burns -v- Consignia PLC and will be known as Burns -v- Consignia PLC (No 2).  This case came before us for hearing on 2 April 2003, when, in a judgment to which we expressly refer, and which we incorporate for the purposes of this judgment, without repetition, we indicated that we would dismiss the substantial content of the appeal made by the Appellant, Miss Burns, against the Decision of the Employment Tribunal at Watford after a hearing on 14, 15 and 16 May, handed down on 28 June.  

2	That Decision had struck out the Appellant’s complaints in a second Originating Application, brought against the Respondent, her former employers, she having earlier abandoned her first such Originating Application.  In relation to the small balance of the appeal, which was not at that stage dismissed, we concluded, after hearing argument from both Mr Horan, Counsel for the Appellant, and Ms Palmer, Counsel for the Respondents, that we should remit to the Employment Tribunal paragraph 68 of the Decision for its further consideration.  

3	The Order that we made on that occasion read as follows:
“(i) in respect of the Appellant’s claims for sex discrimination and victimisation as against the first and second Respondents the Appellant’s appeal be dismissed;
(ii) the balance of the Appellant’s appeal, i.e. in respect of her claim against the first Respondent for unfair constructive dismissal, be adjourned and the matter be remitted to the Employment Tribunal under section 35 of the Employment Tribunals Act 1996 for further consideration on paper of paragraph 68 of its Decision in the light of the judgment of the Employment Appeal Tribunal and the decision in De Keyser Limited v Wilson [2001]IRLR 324;
(iii) both parties are permitted to lodge with the Employment Tribunal and exchange further written submissions (but not evidence) in relation to the matter so remitted…”
and directions were made in relation to the lodgment of those submissions.
“(iv) as to the outcome of the remission to the Employment Tribunal:
(a) if the Employment Tribunal provides its written reasons upholding paragraph 68 of its Decision, then the adjourned appeal is to be restored to the Employment Appeal Tribunal for further consideration and determination on paper: the parties to be at liberty to apply to the Employment Appeal Tribunal on paper on notice to each other within 7 days of receipt of such written reasons for a further oral hearing, but the question of whether any further such oral hearing is necessary to be decided on paper by the Employment Appeal Tribunal.  
(b) If the Employment Tribunal decides to review its Decision then this appeal shall stand adjourned until the determination of such Review: but the parties must inform the Employment Appeal Tribunal of the position within 2 months of the date of this sealed Order.”

4	It is apparent that the option was thereby given to the Employment Tribunal either to confirm the content of paragraph 68, giving its reasons therefor, but without taking any further oral evidence, or to differ, or, at any rate, to take the view that it might differ, from its original view, in which case the Employment Tribunal was entitled to review its Decision of its own motion, and could then have called further evidence for the purposes of that review.  

5	The Employment Tribunal convened, with the benefit of the Skeleton Arguments from both sides, prepared by Mr Horan on the one hand and Ms Palmer on the other, on 4 June 2003, just under a year after it had handed down its original Decision and commendably speedily after receiving the judgment of this Appeal Tribunal.  It met again on 1 September 2003, and in a decision sent to the parties on 16 September 2003, it confirmed its conclusion in paragraph 68 of its earlier Decision, giving reasons.  

6	Pursuant to the directions that we had given, the Appellant applied for a further oral hearing before us, by way of the adjourned hearing being restored and, pursuant to the direction whereby a decision to that effect could be given on paper by this Tribunal, after considering submissions made by both sides, an Order was made by the President in Chambers, at the instance of the Appellant on 13 November 2003, whereby the balance of the Appellant’s appeal, which was by Order dated 2 April 2003 adjourned pending remission to the Employment Tribunal, be restored for further oral hearing before the same constitution.  That is what we have heard today.  

7	By way of a preliminary point, Mr Horan has submitted that he should be allowed to challenge the Order that we originally made in April of last year for such remission.  He submitted that remission pursuant to section 35 of the Act was not permissible or appropriate, by reference to the case of Tran -v- Greenwich Vietnam Community Council [2002] IRLR 735.  The background to his challenge, contained in his Skeleton Argument of 8 January 2004, served last week, was that his client had not sought to appeal the Order of this Appeal Tribunal of 2 April 2003 to the Court of Appeal, either within fourteen days or at all, nor had she applied to this Tribunal, either within time or at all, for a review.  

8	No explanation was given for neither course having been taken, or for it having been left until 8 January of this year to challenge the course taken in April of last year, and, of course, in the meanwhile, Mr Horan had straightforwardly co-operated and taken part in the process of remission to the Employment Tribunal, by way of the submission to that Tribunal of the Skeleton Argument to which we have referred, and the consideration by the Employment Tribunal had taken place and been completed, without any objection by the Applicant, indeed with her co-operation.  

9	We are entirely clear that it is far too late now for any challenge to be made to the Order that we made for remission, so long afterwards, and after the events to which we have referred; but, insofar as there is an application to us, either for a review or for permission to appeal out of time on any such basis, any such application is hereby refused, and in the exercise of our discretion, we conclude that the making of any such arguments is quite inappropriate.  

10	However, we take the opportunity to say something in relation to what Mr Horan has submitted, because of the practice which is adopted now by the Employment Appeal Tribunal and which we firmly believe is of great value to practitioners and parties before the Employment Appeal Tribunal, and indeed tribunals below, and is welcomed by both the Employment Appeal Tribunal itself and the employment tribunals.  The practice that we follow is to adopt the procedure recommended and approved by the Court of Appeal in the seminal decision of the Court given by the Master of the Rolls, who plainly intended it to be of universal application so far as the Courts are concerned, in English -v- Emery Reimbold & Strick Ltd [2003] IRLR 710, [2002] 1 WLR 2409.  

11	In that case the Master of the Rolls emphasised that it was a matter of natural justice, and a fundamental principle of the common law, that reasons for decisions should be given by any judge and we believe, notwithstanding that Mr Horan sought to contend to the contrary, that this applies not only to all courts but also to any tribunal exercising similar powers and giving the opportunity for both sides to be heard before it and acting in accordance with natural justice.  Of course it was not the first time that this principle had been stated by a Court, either in this country or anywhere else in the world, but it is the context in which it was stated which is important.  Lord Phillips MR said at paragraph 15:

“There is a general recognition in the common law jurisdictions that it is desirable for judges to give reasons for their decisions, although it is not universally accepted that this is a mandatory requirement”
But he then refers to the requirement that justice must not only be done but must be seen to be done; reasons are required if decisions are to be acceptable to the parties and to members of the public.  At paragraph 16 Lord Phillips said:
“We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost.”

Explanation is given by the Court of Appeal as to what is meant by adequacy of reasons, and although there is no explicit reference, indeed no reference at all, in the judgment to the important case, as far as employment tribunals are concerned, of Meek -v- City of Birmingham District Council [1987] IRLR 250, the principles are identical; and at paragraph 19, Lord Phillips says:
“….if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision.”

12	In paragraphs 22 to 25 of the decision of his judgment, Lord Phillips refers to the earlier Court of Appeal decision in Flannery -v-Halifax Estate Agency Ltd [2001] 1 WLR 377, in which the Court of Appeal had made two suggestions with a view to preventing unnecessary appeals on the ground of the absence of reasons.  Lord Phillips continued:
“The court suggested that one remedy open to the appeal court would be to remit the matter to the trial judge with an invitation or requirement to give reasons…..The other suggestion made by the court in Flannery was that the respondent to an application for permission to appeal on the ground of lack of reasons should consider inviting the judge to give his reasons…..”.  
At paragraph 24 Lord Phillips said this:
“We are not greatly attracted by the suggestion that a judge who has given inadequate reasons should be invited to have a second bite of the cherry.  But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons.”
And the approach of the appellate court is then discussed by the Court of Appeal in that context.  

13	Of course there are dangers in remitting to the original tribunal a case where the ground of appeal is inadequacy of reasoning, and there will be some cases in which the reasoning is so inadequate that it would be unsafe to remit to the same tribunal.  Equally, there will be the potential danger of giving the opportunity to a court below to reconsider its decision on an entirely different basis.  However, remission, carefully controlled, makes, as we see it, entire sense.  The remission in this case was expressly on the basis that the Tribunal should not call any further oral evidence; it would, of course, have its notes of evidence, and it would be able to express its reasons, which would be based upon the original findings of fact.   

14	In the employment sphere, there is the added important factor that the first instance court, the employment tribunal, has, in any event, the power to review of its own motion, which is not open, for example, to a High Court Judge; and thus on a remission, it gives the option to an employment tribunal to widen its own remit in order actually to grant a review and/or hold a hearing for that purpose.  Thus, even if the remission itself is expressly limited, there is always the power to which we have referred in the employment tribunal.  

15	The practice in the Courts generally is one which plainly is dedicated towards saving both the time and the costs if an appeal going forward to a full hearing, such that it is then, and only then, that the decision is quashed, and there is then a re-hearing ordered before a fresh Tribunal.  That can both take an enormous amount of time, because there already has been a passage of time pending the hearing of the appeal and there is now additional time while a fresh hearing is fixed, and also inevitably leads to additional cost being incurred.  We are entirely satisfied that in most cases the practice, which is now enshrined in English -v- Emery Reimbold as being ordinarily appropriate for the Courts, is also appropriate, proper and necessary for employment tribunals.  That is the practice which was followed in this case, and is now regularly followed by the Employment Appeal Tribunal in an appropriate case at all stages of our procedures.  

16	Had Mr Horan been permitted to proceed with his challenge, way out of time, as we have indicated, he would have sought to have submitted that this Appeal Tribunal is bound by Tran, to which we have referred.  Although, clearly, because of the circumstances of this case, it is strictly not necessary for us to decide, we are of the view that we were not prevented by Tran from taking this course.  We are entirely satisfied that the proposition drawn by Mr Horan from Tran was, at the very least, strongly arguably obiter, so far as it is based upon the majority decision of Arden LJ, agreed by Brooke LJ, Sedley LJ disagreeing, as to the construction of section 35 of the Employment Tribunals Act 1996.  

17	The decision in Tran was that the Court of Appeal would not interfere in order to conclude that the Employment Tribunal in that case had given inadequate reasons; and consequently the appeal was dismissed and the Employment Tribunal’s decision remained upheld.  Sedley LJ speculated, obiter, as to what might be the position in some other case, in which an Employment Appeal Tribunal might wish to interfere with the decision of another employment tribunal, on the basis of inadequacy of reasons, short of having a full appeal and ordering a re-hearing, and he, Sedley LJ, expressed the opinion, with which we firmly agree, that the proper construction of section 35 would allow a course such as we have taken in this case.  Section 35 reads as follows:
	“35 (1) For the purpose of disposing of an appeal, the Appeal Tribunal may- 
(a) exercise any of the powers of the body or officer from whom the appeal was brought, or
(b) remit the case to that body or officer.”

Sedley LJ opined that to take the course which we have taken, and which has now been taken in a number of other cases in the Employment Appeal Tribunal, including Adebowale -v- Peninsula Business Services (EAT/1135/02/DA) 7 March 2003 and the earlier decision of Prebon Marshall Yamane (UK) Ltd -v- Rose (EAT/1000/02/DA) 3 December 2002, was indeed “for the purposes of disposing” of the appeal.  

18	An Order such as we made in April 2003 did not itself dispose of the appeal; it disposed of three quarters of it, and adjourned the balance for the answer to a particular question, just as was the similar position in Adebowale.  But the purpose of asking the question by way of remission to the Employment Tribunal was for the purpose of disposing of the appeal, once that question was answered.  Arden LJ, with whom Brooke LJ agreed, took a different view, but does not expand upon her reasons.  In paragraph 37 of her judgment she simply says:

“…… In respectful disagreement with Sedley LJ, I do not think that remission in circumstances other than final disposal could be said to be ‘for the purpose of disposing of the appeal’.”

Brooke LJ at paragraph 51 said:
“the EAT would not be disposing of the appeal in such circumstances; it would be retaining it, which is a wholly different matter.”  

19	However, in our judgment, and in respectful agreement with Sedley LJ, what we did was plainly “for the purposes of disposing” of the appeal, after the obtaining of the answer from the Employment Tribunal, just as it was in Adebowale. 

19.1  It is plain that, given the view we take that the views of the majority of the Court of Appeal in Tran were plainly obiter, we do not consider ourselves bound by them.

19.2  In any event, it is clear that had the decision been ratio, and/or in any event, it is necessary to take account of the important decision in English, delivered by the Master of the Rolls as the judgment of the Court of Appeal, only seven days later; to which, clearly, reference could not be made in Tran, and in which reference was not made to Tran.  We understand and accept, of course, that English is a statement about the position of the law in the High Court and County Court and at common law, whereas, on its face, the issue in Tran was as to the construction of section 35.  We are satisfied, however, particularly given what would appear to us to be a straightforward interpretation of the words “for the purposes of disposing of the appeal”, that if, now, further consideration is given to the construction of section 35, any hostility to the idea of a second bite of the cherry, which must have formed the basis of the views of the majority of the Court of Appeal in Tran, would be overtaken and ousted by the contrary conclusion of the Master of the Rolls in English -v- Emery Reimbold, which now forms the basis of practice throughout England and Wales in all Courts.

19.3  In any event, Judge McMullen QC indicated in Prebon Marshall Yamane, to which we have referred, a more traditional approach to the question as to whether, assuming that the decision in Tran were ratio, it could be challenged as being inconsistent with earlier Court of Appeal authority. 

20	Thus, had the matter been considered by us, and had this been an appropriate case for us to reach a conclusion, we would have been satisfied that the course that we took in this case was open to us, and indeed was plainly the right answer; but in the circumstances, as we have indicated, we do not conclude that, even if it were right, Mr Horan’s argument should now be permitted to be run.  

21	We turn then to the simple question which is what we understood was going to be left to us, as a result of the Decision of the Employment Tribunal, namely whether, the matter having been remitted to the Employment Tribunal by us, the answer it gave can be challenged in law.  The decision is contained in a three page document consisting of seven paragraphs, but of course it is essential to bear in mind:

(1) that this was the Tribunal which had, albeit something like a year earlier, heard the Decision itself;
(2) that the Decision expressly refers to, and incorporates, our judgment, the decision in De Keyser which itself incorporates other relevant authorities, the Employment Tribunal’s earlier Decision and the written submissions by both Applicant and Respondent, which had been put before it; and the brevity is, therefore, both understandable and, in our judgment, sensible.

22	In paragraph 3 of the Tribunal’s Decision, it records as follows:
“We accept that a tribunal hearing a case could find in favour of a party who has lied and thus that the Tribunal hearing the Applicant’s case could conclude that she had been constructively dismissed.  We recognise that the fact that the Applicant has not told the truth in the past did not mean that she will not tell the truth in the future.  At the hearing which took place between 14 and 16 May 2002 we had before us 3 complaints brought by the Applicant.  We did not find the Applicant to be a credible witness.  At that hearing we found that the Applicant was not merely embellishing her complaints of discrimination rather she was fabricating events and versions of events.  We found that the Applicant had sought to deliberately mislead the Tribunal and we would have had difficulty in accepting the Applicant’s evidence corroborated only by her mother.”

That purports to be a summary of the findings that the Tribunal had earlier made.  It does not purport to be any fresh finding of facts, and indeed, the Tribunal had heard no fresh evidence upon which it could have made any fresh findings of fact.  It was, on the face of it, a recital of the earlier evidence and findings, upon the basis of which it was now going to address expressly the questions which had been remitted to it, namely as to whether there could be a fair trial of the action in those circumstances, such that on the carrying out of the necessary balancing exercise, it was appropriate to strike out the claim as it had done.  

23	Mr Horan submitted that the Tribunal went further in paragraph 3 than it had gone in its earlier findings.  It is certainly right that the language it uses is not identical to that which it had used in the earlier Decision.  The relevant paragraphs in the earlier Decision, after the setting out of the facts, whereby serious allegations, which the Tribunal found to be wholly unfounded, were made by the Applicant against a Mr Anderson, were in the first instance paragraphs 31 to 32.  They read as follows:
“31  We consider that in making the claims that the Applicant has in her evidence, the Applicant was deliberately trying to mislead the Tribunal on facts which would be of relevance to it in the determination of whether it had jurisdiction or exercise its discretion to consider her complaints now before it of sex discrimination, because of the time point.  In respect of the statements made which related to Mr Anderson, these were made without prior notice to him, were of a very serious nature and could have a significant detrimental impact upon him, if true.  We have found the allegations to be untrue.
32  We consider the conduct of the Applicant in these proceedings to be scandalous and unreasonable.”

24	Then, at paragraph 68, which is the central paragraph, already set out in our earlier judgment, which we have incorporated by reference for the purposes of today, and therefore we do not need to set it out in detail, the Tribunal referred to its conclusion that the Applicant had attempted to mislead it, in relation to the making of serious allegations which could affect the livelihood and reputation of another person, that it did not consider the Applicant to be a credible witness and that because of its findings it would have difficulty in accepting any evidence from her, corroborated only by her mother, and it repeats the conclusion that she had acted in a scandalous and unreasonable manner.  

25	We are entirely satisfied that, although the language used is not identical, the Tribunal is indeed only reciting and summarising, for the purposes of the second Decision, the findings of fact that it had earlier made.  We do not see any distinction between recitation of a conclusion that “the Applicant was deliberately trying to mislead the Tribunal” and one that the Applicant “was fabricating events and versions of events”.  What the Tribunal was saying is that her oral evidence consisted of lies.  

26	Mr Horan submits that it is important to bear in mind the following:

(1) the dangers of the Tribunal having a second bite at the cherry, which were, of course, considered by Lord Phillips in English, and were indeed considered by us when we remitted the matter, and in limiting the remission in the way we did,

(2) that the decision of the Tribunal came, as he puts it, some sixteen months after the original hearing.  We are not persuaded that the sixteen months’ period to which he referred several times is a relevant one; in reality, it heard the Applicant in mid-May of 2002; it reached a decision on the Applicant in a Decision handed down in late June of 2002 and it reconvened, with the benefit of all the documents to which we have referred, on 4 June 2003.  

27	This was a simple case.  The facts are set out in great detail not only, no doubt, in their notes of evidence but also in their own Decision and in the decision of this Appeal Tribunal, and the issue was a comparatively short one.  We do not conclude that this is a case in which it can begin to be arguable that the Employment Tribunal was not in a position to base itself on the findings of fact that it had earlier made, and set out its conclusion in the way that it did.  

28	Although he did not expressly take the point before us, we thought it right to consider the question, and raised it with him, as to whether the Tribunal ought to have set the matter out at somewhat greater length, insofar as its conclusions in paragraph 4 are concerned.  In paragraph 4, basing itself on the repetition of its findings to which we have referred, the Tribunal properly referred both to De Keyser and to the judgment of Chadwick LJ in Arrow Nominees - v - Blackledge [2000] BCLC 167, and concluded that there was a real risk that the Applicant’s conduct would render the further conduct of proceedings unsatisfactory, and that because of the Applicant’s actions there would be a substantial risk of injustice should the application proceed; that there must be a significant risk that the Applicant would attempt deliberately to mislead the Tribunal and to be dishonest in her evidence again; that the proceedings would be unsatisfactory; and that she was determined to pursue the proceedings with the object of preventing a fair trial, and that a fair trial was not possible.  

29	In some cases a greater or more close analysis may be necessary, but it is noteworthy that in the Skeleton Arguments put before the Tribunal, no such analysis was carried out in this case, and we can understand why that was so.  There may be cases in which the fact that the oral evidence was so totally flawed, as is here described, such as to render a fair trial impossible by reference to it, might be counterbalanced by the existence of other elements which would need to be taken into account in the process.  There might be other independent oral evidence to be given by other witnesses; or there might be some documentary evidence which could be said to be irrefutable, even if the oral evidence itself was totally flawed.  It was common ground here that there was none such and the absence of reference to it, therefore, in the Employment Tribunal’s Decision is clearly explicable on that basis.  

30	This was a case, as we have summarised previously, in which the alleged discrimination, which was said also to form a fundamental breach of contract, had occurred many months earlier, and had formed the subject matter of an Employment Tribunal application which had been abandoned, and the issue would be, at any hearing of a case of unfair constructive dismissal, whether the Applicant was belatedly resigning or whether she was accepting in some way the alleged earlier fundamental breach.  The whole case would stand or fall, it is common ground, on her oral evidence.

31	We are entirely satisfied that the Tribunal was entitled to reach the conclusions it did in paragraph 4, 5 and 6 of the Decision.  Mr Horan’s two attacks on the Decision have been as follows: 
(1) an attack on paragraph 7 of the Decision, as indicating that the Tribunal did not consider the question of proportionate response; and
(2) in the end, an assertion that the conclusion of the Employment Tribunal must be attacked on the basis that it was perverse.

32	So far as the first of those two arguments are concerned, we do not agree.  Paragraph 7 reads as follows:
“We were invited to consider that it was a proportionate response to strike out the complaint for unfair dismissal because of the inevitability of substantial re-litigation of issues of fact.  We would not do so as the Applicant has the right to present her complaint and as such, is entitled in usual events to have it heard.  We limit our reason to why the Originating Application should be struck out to that described before.”

This is plainly a reference to the submissions of Ms Palmer for the Respondent, made in the alternative in her Skeleton Argument, notwithstanding the finding by this Tribunal, in our judgment, that the Applicant could not be prevented in ordinary circumstances from bringing the second Originating Application based upon the fresh fact of the resignation which was said to amount to a constructive dismissal, that nevertheless it should be borne in mind that, were the claim to continue, there would inevitably be substantial re-litigation of issues of fact which had been withdrawn from the Tribunal, and that this was a factor to be reflected in the balancing process.  That was an argument which the Tribunal rejected and thus found in favour of the Applicant.  

33	However it is plain that the Tribunal did consider the question of proportionate response, contrary to Mr Horan’s submissions, not by reference to paragraph 7, which in those circumstances is not relevant, but in paragraph 6 in which it referred to the balancing exercise; and the balancing exercise, which is referred to in the authorities, is only another way of putting the question of a proportionate response, because consideration of the proportionate response requires a balancing exercise.  Mr Horan made no criticism of the balancing exercise per se; he simply said that it was not sufficient to amount to consideration of a proportionate response.  We disagree.  

34	In those circumstances, the Decision of the Tribunal is only challengeable by Mr Horan on the basis that he submits that no reasonable Tribunal could have come to the conclusion it did.  This was a conclusion that, particularly in the absence of any corroborative evidence, any other witnesses, any documents, the case would depend wholly on her oral evidence, in circumstances in which the Tribunal was satisfied that she had deliberately set out to mislead, and would be likely to continue to do so.  Mr Horan invites us to reach a view that in those circumstances it would not be reasonable to conclude that in fact that would not be possible, but of course as he recognises, that is not the test.  The tribunal which had to reach this conclusion was the Employment Tribunal, and not the Appeal Tribunal, and it applied the cases, and it is not suggested not to have done so, which were relevant, and it followed the guidance of this Appeal Tribunal and, again, is not suggested to have done so.  The occasion now, particular since Crofton -v- Yeboah [2002] IRLR 634, for this Appeal Tribunal to interfere with a decision of an employment tribunal on the basis that it is perverse, is very limited indeed.  We are entirely satisfied that this is not an appropriate case in which to do so.  

35	In those circumstances this appeal is dismissed.