Whether a manager of a national football team or a Judge in the EAT considering the disposal of a successful appeal, the correct timing of a substitution can be crucial. As to the second of those, the Court of Appeal in Burrell v. Micheldever Tyre Services  EWCA Civ 716, has recently considered the question of when the EAT should substitute its own decision rather than remitting the case back to the original Tribunal.
In recent years there had been a discernible trend in the Court of Appeal’s comments (see in particular Elias LJ in Tilson v. Alstom Transport  EWCA Civ 1308) of nudging the EAT towards being more liberal in the use of its powers to substitute a decision rather than remitting. Burrell sees the Court of Appeal halting that trend but simultaneously adding some noteworthy guidance about the how to constrain the exercise the power to remit.
At first instance the claimant succeeded in a claim of victimisation but on appeal the EAT concluded that the ET had made a clear error of law by concluding the reason or motive for the adverse treatment was ‘immaterial’.
In disposing of the appeal the EAT scrutinised the findings of fact made by the ET and concluded that there was no evidence to justify a conclusion that the protected act played a part in the adverse treatment . Accordingly the EAT saw no need to remit the case to the ET for it to reconsider victimisation absent the original error of law, and concluded that the victimisation claim therefore failed.
The Court of Appeal allowed the claimant's appeal against the decision not to remit the case, on the basis that the EAT had wrongly concluded that the only permissible interpretation of the evidence before the ET was that the adverse treatment was not by reason that the claimant had performed a protected act; other interpretations of the ET’s findings were possible.
In its judgment the Court of Appeal reviewed the authorities and reaffirmed the orthodox legal principles concerning when the EAT should substitute or remit, and in doing so placed heavy reliance on the judgment of Laws LJ in Jafri v. Lincoln College  EWCA Civ 449. These principles are in essence: the EAT must remit a case unless (a) the original error cannot have affected the result or (b) if the error did affect the result the EAT is nonetheless able to conclude on the facts found by the ET what the result ‘must have been’. In neither instance must the EAT make any factual assessment itself, the only tools it may use are the facts as found at first instance, supplemented (if at all) only by undisputed or indisputable facts.
Although upholding the conventional approach because he felt bound by Jafri and on the basis it was undesirable for there to be two conflicting Court of Appeal decisions on the same point, Maurice Kay LJ expressed clear sympathy (see paragraph 17) with the view that this rigid approach should be tempered.
In particular he found force in the arguments that the older case law pre-dated firstly the abolition of lay members in many types of case (thus reducing the potency of the 'industrial jury' as a reason for remitting to an ET) and secondly the introduction of the 'overriding objective' which expressly includes proportionality and saving expense amongst its components, both of which would often be highly relevant factors in a decision by the EAT on whether to substitute or remit.
Thus while not formally modifying the conventional approach in law, despite being minded to do so if given he had been given a free hand, Maurice Kay LJ did then give a steer to the EAT as to how it could contain the power to remit, suggesting three techniques:-
- Provided it is being intellectually honest, the EAT can be "robust rather than timorous" in applying the principles in Jafri, and in particular when addressing the question of whether a particular case really does permit more than one possible result on the evidence;
- Parties before the EAT can be 'encouraged' to consent to the EAT disposing of the case pursuant to its powers under s.35(1)(a) of the Employment Tribunals Act 1996, even where the EAT does not itself consider that the appeal before it falls into the category of cases where only one result 'must' have occurred;
- Even where remittal is necessary, the EAT can demonstrate its mindfulness of the over-riding objective by limiting the scope of the remittal by identifying issues or limiting or forbidding further evidence.
In the immediate disappointment / outrage of receiving an unfavourable outcome from a Tribunal, focus is upon whether or not there is a sustainable ground of appeal that can be discerned. Thereafter, the excitement of identifying any such appealable error which has good prospects of success, can distract from consideration of how the appeal will ultimately be disposed of and whether the attendant costs and delay of a remittal might actually significantly reduce the practical benefit of a successful appeal.
Although the much reduced workload of Tribunals mean delay is less of a feature than it once was, a potential appellant will obviously have to bear in mind that even if successful they will face the additional costs of a further hearing if remittal is ordered.
In practical terms, the guidance in Burrell is a clear steer to the EAT avoid remitting cases and parties to appeals can take the following steps to avail themselves of this guidance: Firstly, early dispassionate consideration should be given as to whether the EAT, following the Court of Appeal advice to be robust, is realistically likely to consider that the case is one with more than one potential outcome.
Secondly, while the EAT can only 'encourage' the parties to consent to the disposal of an appeal without remission, it is suggested that the issue of disposal by consent can be raised at an early stage of an appeal, perhaps at a Preliminary Hearing, so that the EAT judge can express a view on the suggestion and record any consent at that stage. Moreover, if one party is being recalcitrant about giving consent to disposal without remission, then the other party should put the offer in writing and marry it to a costs warning which might be relied upon at a later remitted hearing depending on the outcome of that hearing.
Lastly, while the appropriate scope of a remittal cannot be precisely identified until the outcome of the appeal is known, it would be sensible to give advance thought to how issues that might be remitted can be limited so as to reduce the length and cost of any remitted hearing. That way a draft can be prepared and put before the EAT when disposal is being considered (it should be noted that Paragraph 23 of the EAT Practice Direction 2013 deals specifically with the issue of the scope of any remission).
In summary, if proper early regard is had to how, in the light of Burrell, an EAT is likely to dispose of an appeal this will avoid leaving a successful appellant with a Pyrrhic victory possessing all the significance of a third/fourth place play-off in an international football tournament.