Neutral Citation Number: [2008] EWCA Civ 435

Case No: A2/2007/1839
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 
EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/04/2008
Before :

LORD JUSTICE BUXTON
LADY JUSTICE SMITH
and
LORD JUSTICE WALL
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Between :

	CAROLINE ELIZABETH BONE	Appellant	
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	THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF NEWHAM	Respondent	

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John Horan (instructed by Citizens Advice Bureau) for the Appellant
Jude Shepherd QC (instructed by London Borough of Newham) for the Respondent

Hearing date : 15th April 2008
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Judgment

Lord Justice Wall: -  
The appeal

1.	This appeal from the Employment Appeal Tribunal (EAT) arises in highly unusual circumstances and it is therefore necessary to set out the background in somewhat greater detail than would otherwise be the case. Its unusual feature is that the issues (which essentially go to liability) arose only during the course of a remedies hearing in the Stratford Employment Tribunal (the Tribunal) on 11 and 12 December 2006, following an earlier liability hearing which had been spread over some 10 days between 25 January and 16 March 2006, followed by 5 days in May and June 2006 spent in chambers, and a decision promulgated on 26 June 2006.
2.	The appellant in this court is Caroline Elizabeth Bone, who was the claimant in the Tribunal. The respondent before us, and before the Tribunal, is the appellant’s former employer, the Mayor and Burgesses of the London Borough of Newham (Newham), although there were other respondents (all employees of Newham) before the Tribunal.
3.	The appellant made three separate applications to the Tribunal alleging sex discrimination, victimisation and unfair dismissal.  The three applications were consolidated and heard together. In relation to direct sex discrimination, the Tribunal identified some 30 incidents spread over the three applications in which the appellant alleged she had suffered discrimination. In the  alternative, the appellant invited the Tribunal to treat all 30 incidents as acts of victimisation. She also alleged that she had been constructively unfairly dismissed and that Newham had acted in breach of contract. Most importantly for our purposes, the Tribunal recorded, under the preliminary heading Breach of Contract:-
In addition to these breaches the claimant says that her dismissal/resignation on 23 May 2005 was in itself an act of direct sex discrimination, victimisation, constructive unfair dismissal and a breach of contract.
4.	The appellant appeared in person both before the Tribunal and in the EAT. Newham has throughout been represented by counsel, Miss Jude Shepherd, who also appeared before us.
5.	In the liability hearing, the appellant achieved a measure of success. However, as the EAT pointed out, it was clear to anyone reading the Tribunal’s initial decision promulgated on 26 June 2006 that the summary of the conclusions in respect of victimisation failed to accord with the decisions recorded.  There were, in particular, two issues (numbered by the Tribunal (xx) and (xxii)) which, in the decision, the Tribunal found proved as instances of victimisation but which failed to find their way into the Tribunal’s summary as having been proved.
6.	The appellant pointed out this deficiency to the Tribunal and, on 8 September 2006, the Chairman, uncontroversially, issued a Certificate of Correction under the provisions of rule 37(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the Regulations). I will call this “the first certificate”. The Tribunal then sent its revised judgment and reasons to the parties on 8 September 2006.
7.	The unanimous judgment of the Tribunal as contained in the version of the decision sent to the parties on 8 September 2006 was in the following terms:-
(1)	(Newham) and (Mr. Abdul Qureshi) (Newham’s head of property services) directly discriminated against the claimant on grounds of sex as alleged in issues (i) and (iii) and victimised the claimant to her detriment contrary to the provisions of the Sex Discrimination Act 1975 as alleged in issue (vii) of the issues set out herein.
(2)	(Newham) and (Mr Eric Abu) (the appellant’s team leader and immediate line manager) victimised the claimant to her detriment contrary to the provisions of the Sex Discrimination Act 1975 as alleged in issues (vi), (vii), (ix) in part, (xv)-(xvii), (xx) and (xxii) of the issues set out herein.
(3)	the claimant’s other complaints of direct sex discrimination and victimisation contrary to the Sex Discrimination 1975 fail and are dismissed.
(4)	the claimant was dismissed; she resigned in response to (Newham’s) breach of the implied term of trust and confidence.
(5)	Her dismissal was unfair.
(6)	A date will now be fixed for a remedy hearing if required. 
8.	The details of the allegations found to be proved do not, for present purposes, matter. What does matter, and what will immediately be observed, is that the judgment does not say that the claimant’s dismissal was an act of direct sex discrimination and victimisation.
9.	A remedies hearing was indeed required and, as I have already stated, began on 11 December 2006. At this hearing, it emerged that there was what the Tribunal Chairman subsequently described as “a fundamental misinterpretation” of its judgment on Newham’s part, in that Newham had prepared for the remedies hearing on the “misunderstanding …. that the Tribunal had not found the (appellant’s) dismissal was sex discrimination”. The Tribunal decided to adjourn the remedies hearing to allow Miss Shepherd “to take detailed instructions from her client and revise her instructions”.
10.	In what is described as a “Judgment on Remedy”  (and from which the quotations in the previous paragraph are taken) the Tribunal added the following two paragraphs:-
5.	When invited to do so, the Tribunal agreed to consider whether to review of its own accord its judgment to clarify there was a finding of sex discrimination in respect of the dismissal and to say against whom this finding was made.
6.	Having re-read its judgment, the Tribunal decided to issue a certificate of correction pursuant to rule 37(1) of (the Regulations). The certificate of correction and corrected judgment are attached to this judgment.
11.	I will call the document attached to the Tribunal’s Judgment on Remedy “the second certificate”. It is dated 5 January 2007 and it purports to amend the terms of the judgment which I have set out in paragraph 7 above.  It amends paragraph (3) by adding the words “save as is set out under paragraph (4) below” to the beginning of (3), and to paragraph (4) it adds the words “Her dismissal was direct sex discrimination and victimisation by (Newham)”. It  adds identical  words  to paragraph 136 of  the judgment sent to the parties on 8 September 2006, which, without those words, read as follows:-
Dismissal
136. The facts found by the Tribunal show the claimant was subjected to a course of conduct by (Newham) and (Mr Abu) which amounted to sex discrimination by way of victimisation after she alleged, and the Tribunal has found she was,  directly discriminated against on grounds of sex by (Newham) and (Mr Qureshi). By their conduct the Respondents breached the implied term of trust and confidence between the parties. The Respondent has sought to argue the claimant has waived the breach or breaches of this implied term. It is hard to see when the claimant has waived any breach. She pursued a grievance, she commenced proceedings, and when an attempt to resolve the proceedings broke down and no real effort was made to assist her to return to work she became ill again and resigned when she received the unreasonably delayed outcome of her Stage 3 grievance. The Tribunal finds the claimant was dismissed.
12.	Newham’s reaction to the receipt of the second certificate and the amended judgment was to appeal to the EAT on the grounds that the Tribunal had erred in law in issuing the second certificate “that made fundamental changes in the Tribunal’s judgment and reasons” as originally promulgated. Other grounds were that the Tribunal had erred in law in finding that the appellant’s constructive dismissal was an act of either direct discrimination or victimisation; there were also reasons challenges and an allegation that the Tribunal had not identified the protected act relied upon by the claimant for the purpose of the finding that her constructive dismissal was an act of victimisation. Only the first ground succeeded. The EAT held that, in amending its decision as it had in the second certificate, the Tribunal had gone well beyond what was permitted by paragraph 37 of the Regulations. The EAT allowed the appeal but made no consequential directions.
13.	The appellant filed a cross-appeal relating to her attempts to return to work (issue (xxvi)). In this respect, she was partially successful. The EAT recorded that the Tribunal had made “a detailed series of findings in respect of the comprehensive failure” on the part of the head of human resources in Newham’s environmental department “to take any remotely interested steps in attempting to find the appellant alternative work”. The Tribunal had, however, gone on to dismiss the complaint of either victimisation or sex discrimination on the basis that the facts found by the Tribunal did not show a prima facie case of less favourable treatment, although they did show a “depressingly low level of effort put into finding a way back into work for a claimant who made it clear she wanted to get back to work and who was signed off fit to return”.
14.	The appellant asserted that the Tribunal’s conclusion that there was no prima facie case was itself both “breathtaking” and perverse. The EAT agreed. It allowed the appellant’s cross-appeal, overturned the finding of no prima facie case and remitted the issue to the Tribunal “to receive further evidence and submissions if so advised and to make its findings in respect of victimisation or sex discrimination in respect of issue number (xxvi) having regard to our finding that there was a case of less favourable treatment”.
15.	For reasons which will, I think, once again become apparent as this judgment progresses, the EAT was at pains to limit its remission of the appellant’s case to issue (xxvi) as a discrete issue and not as one designed to lead to a reopening of the question of whether or not the appellant’s dismissal was itself an act of direct victimisation.
16.	The appeal and the cross appeal were the subject of a judgment by the EAT which is dated 21 June 2007.  The EAT allowed Newham’s appeal and the appellant’s cross-appeal  As to the latter, it substituted a finding in relation to issue (xxvi) that there was a prima facie case of less favourable treatment of the appellant and remitted the limited issue arising on the cross-appeal to the Tribunal.
17.	Thus it comes about that, with permission granted by Smith LJ on paper on 27 November 2007,  the appellant appeals against the order of  the EAT dated 21 June 2007.
The decision of the EAT 
18.	It is, of course, trite law that the function of this court, when hearing an appeal from the EAT, is to decide whether or not the Employment Tribunal has made an error of law which the EAT has failed to correct.  In the instant case, I am in no doubt at all that the Tribunal’s use of paragraph 37 in Schedule 1 of the Regulations to amend its previous judgment was impermissible and an error of law. I am equally clear that the EAT was right, as it did, so to hold. The critical question raised by this appeal, to my mind, is whether or not the EAT was right simply to allow Newham’s appeal, thereby, as I understand it, leaving the Tribunal’s original and unamended judgment in place.
19.	For ease of reference, I will refer to paragraph 37 in Schedule 1 of the Regulations as the Employment Tribunal equivalent of CPR 40.12 – that is to say “the slip rule”. Paragraph 37 is headed Correction of judgments, decision or reasons and sub-paragraph (1) reads:-
Clerical mistakes in any order, judgment, decision or reasons, or errors arising in those documents from an accidental slip or omission, may at any time be corrected by certificate by the chairman, Regional Chairman, Vice President or President.
20.	There appears to be a dearth of authority specifically related to paragraph 37, and authorities under CPR 40.12 were relied upon by analogy. In the EAT, Miss Shepherd  relied on the commentary to CPR 40.12 in Civil Procedure (The White Book) and to the decisions of Lewison J in  Smithline Beecham plc v Apotex Ltd [2002] EWHC 1655 (Ch) and of this court in Markos v Goodfellow [2002] EWCA Civ 1542. In the current edition of the White Book,  the first paragraph of the commentary reads as follows:-
The so-called “slip rule” is one of the most widely known but misunderstood rules. The rule applies only to “an accidental slip or omission in a judgment or order”. Essentially it is there to do no more than correct typographical errors (e.g. where the order says claimant when it means defendant; where it says 70 days instead of seven; where it says “January 2001” instead of “January 2002”. Of course, such errors ought not to occur in important documents like a court order but they are regrettably common). Although not limited to errors by the court or court officers, the rule is limited to genuine slips and cannot be used to correct an error of substance nor in an attempt to get the court to add to its original order (e.g. to add a money judgment where none was sought, and none given at the trial).
21.	 I am in no doubt at all that, whatever the proper confines of the “slip rule” are, the second certificate is outside them. In my judgment, therefore, the EAT was correct in coming to the conclusion, as it did, that the Tribunal had committed an error of law in attempting to use Rule 37 in Schedule 1 of the Regulations to insert into its judgment a specific finding that the appellant’s constructive dismissal was direct sex discrimination and victimisation by Newham.
22.	That, however, in my judgment, is by no means the end of the matter, because it is self-evidently the case that the Tribunal had undoubtedly intended to find that the appellant’s constructive dismissal was indeed direct sex discrimination and victimisation by Newham. This is clear not only from the second certificate itself but also from the judgment of the EAT. In paragraph 15 of its judgment, the EAT said in terms:-
We have no doubt in concluding that it was in the mind of the Tribunal that, in all likelihood, the constructive dismissal by reason of the breach of the implied term of trust and confidence described in paragraph 136 was not only unfair but was by reason of sex discrimination and victimisation. Had the Tribunal added (at) the end of paragraph 136 the words which they added by way of the certificate of correction on 5 January 2007, we can see no sensible basis upon which the correctness of that conclusion, as a matter of law, could have been questioned. That, however, is not the question for us. The fact is that the Tribunal in its original decision, and again by the first certificate of correction specifically stated that the complaint of direct sex discrimination and victimisation constructive dismissal was not found proved but failed and was dismissed not being a claim which was featured in the specific findings in her favour at paragraphs 1 and 2 of the summary. Furthermore, in a reasoned decision paragraph 136 stopped short of making any finding beyond the fact that she was dismissed. The Tribunal went on to deal with the legal consequence of its findings in paragraph 137, solely by reference to unfair dismissal, consistent with the summary to which we have already referred. 
23.	In paragraph 16, however, the EAT went on to say: -
In those circumstances the change which was purported to be affected by the correction, by the second certificate of correction went a good distance beyond the kind of accidental slip or omission which may be covered by the slip rule. It was an adding, by the court, to its original order a finding which it had not originally made which it perhaps intended to make, but in error failed to make. We do not think that one can go so far as to say that it was evidence of second thoughts because we accept at face value what the Tribunal said in its reasoned decision of 5 January that it had, by implication, intended to make that finding but had failed to do so.  Nonetheless, we are constrained, somewhat reluctantly, to conclude that the decision which the Tribunal made was the one which must stand and that it erred in law when it went beyond its jurisdiction by purporting to make a fresh finding on an important matter of substance in the way that it did by issuing a certificate of correction. That being so, in my judgment, the main appeal must succeed. 
24.	In my judgment, the EAT has itself fallen into error in this latter paragraph. Whilst I do not doubt for a moment that it was right to reject the argument that the Tribunal’s judgment could be corrected under the slip rule, it by no means follows that the EAT was “constrained” to conclude that the original decision had to stand.
25.	I start from the premise that, on the findings set out in paragraph 15 of the extract from the EAT judgment which I have cited; (1) the Tribunal manifestly intended to find that the appellant’s constructive dismissal was an act of direct discrimination / victimisation on Newham’s part; and (2) that such a conclusion was, as a matter of law, one which was properly open to it. It follows, in my judgment, that by deciding that the Tribunal’s original judgment must stand, the EAT was perpetuating an injustice. On the EAT’s findings, the appellant can only recover in the remedies hearing on the basis of unfair dismissal. Her compensation will thus be limited to, and capped by, the statutory amount payable under this head. In fact, the Tribunal meant to find – and it would have been a proper finding in law - that her dismissal was an act of sex discrimination / victimisation.  The question, therefore, is whether or not, having identified the error of law in the Tribunal’s judgment, the EAT has corrected it. In my judgment, it has not.
26.	What should the EAT have done? And what should this court do?  These two questions are not, in my judgment, free from procedural difficulty.  The Tribunal’s error cannot, I am satisfied, be corrected by way of a review, either on the application of either party or by the Tribunal acting of its own accord.  Irrespective of the fact that neither party has sought a review and irrespective of whether or not a review would be the proper mechanism for such a correction (as to which I express no opinion), paragraph 36(2)(b) of Schedule 1 to the Regulations makes it clear that, in a review of the Tribunal’s own motion, notice of any such review must be sent to the parties “before the expiry of 14 days from the date on which the original decision was sent to the parties”.  Such a review would thus be substantially out of time and excluded.   Similar time limits apply under rule 35(1), and even though there is power in the Chairman to extend the time, I do not think that it would a proper exercise of the Chairman’s discretion to do so on the facts of this case. So the questions posed at the beginning of this paragraph abide.
The decision of this court in Barke v Seetec Business Technology Centre Limited [2005] EWCA Civ 578, [2005] IRLR 633 (Barke)
27.	Although a great deal of erudition was on display both in the submissions made to the EAT and in this court, neither we nor, we think, the EAT was referred  to the decision of this court in Barke or to the decision of  the former President of the EAT, Burton J in Burns v Consignia (No 2) [2004] IRLR 425, (also reported as Burns v Royal Mail Group [2004] ICR 425) or to the  Employment Appeal Tribunal Practice Direction and Practice Statement made under the Practice Direction (Employment Appeal Tribunal – Procedure) 2004 which came into effect on 9 December 2004.
28.	Barke was concerned essentially with the application in the EAT of the decision of this court in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 (English).  The question arose because of the terms of section 35(1) of the Employment Tribunals Act 1996 (the 1996 Act) and the majority decision of this court in Tran v Greenwich Community Project [2002] EWCA Civ 553, [2003] IRLR 735, which had decided that the EAT could only exercise the wide powers given to it by section 35(1)(a) of the 1996 Act when finally disposing of an  appeal, and at no other stage.
29.	Dyson LJ, who gave the judgment of this court, began his judgment with these words:-
This appeal concerns the lawfulness of a practice adopted by the Employment Appeal Tribunal since 2002 which has been most fully explained by the President (Burton J) in Burns v Royal Mail Group [2004] ICR 1103 ('the Burns procedure') (this decision is also reported as Burns v Consignia (No.2) [2004] IRLR 425). This procedure has since been incorporated in the Employment Appeal Tribunal Practice Direction 2004. It involves the Employment Appeal Tribunal, in a case where an employment tribunal is alleged to have failed in its judgment to deal with an issue at all, or to have given no reasons or no adequate reasons for a decision, inviting the employment tribunal to clarify, supplement or give its written reasons before proceeding to a final determination of the appeal. It is to be distinguished from the practice of remitting a case for re-consideration by an employment tribunal after the final determination of an appeal.
30.	In essence, this court decided that the Burns procedure was lawful, not because it fell within section 35 of the 1996 Act, but because of the Overriding Objective in the CPR, and in the light of the decision of this court in English.  Two further passages from the judgment of this court in Barke will, I think, be sufficient to make the point.
Jurisdiction outside the rules
29.	Even if there were no power to request further reasons pursuant to rule 30, the Employment Appeal Tribunal would in our view be acting lawfully in inviting the employment tribunal to clarify, supplement or give its written reasons. As we have said, there is no prohibition in the statute or rules against such a request. Indeed, s.30(3) of the 1996 Act provides that 'Subject to Appeal Tribunal procedure rules, the Appeal Tribunal has power to regulate its own procedure.' The Burns procedure (now codified in the 2004 practice direction) is an example of such regulation. The only contrary argument advanced by Mr Green is not based on the proposition that it is not open to the Employment Appeal Tribunal to request further reasons. His argument is that such an invitation would be futile because the employment tribunal, being functus officio, could not respond to such an invitation. But for the reasons that we have given, the employment tribunal would not be functus officio. It follows that the Employment Appeal Tribunal is lawfully entitled to invite clarification etc of the reasons of the employment tribunal. That is the view that Stanley Burnton J took in VK v Norfolk County Council and The Special Educational Needs and Disability Tribunal [2004] EWHC 2921 (Admin). That case concerned an appeal to the high court against a decision of a SENDIST on the grounds that its reasons were inadequate. The county council submitted that the court should adopt the procedure suggested by this court in English. Stanley Burnton J said at paragraphs [70]–[71] that the court had no statutory power to remit the appeal to the tribunal to require or compel it to supplement its reasons, but that it could invite the tribunal to supplement its reasons. We agree with him.
30.	We conclude, therefore, that the Employment Appeal Tribunal has the power to invite the employment tribunal to amplify its reasons.
31.	And as Dyson LJ put it in paragraph 42 of his judgment:-
The overriding objective would be frustrated by an unduly restrictive application of the Burns procedure and the jurisdiction explained in English. As Mr Underhill points out, from time to time employment tribunals will fail to give adequate reasons for an aspect of their decision or fail to deal with a point, not because they had no reasons or had not reached a decision on the point not dealt with, but because in the drafting process the reasons were inadequately articulated or the point was overlooked. The Burns procedure allows the employment tribunal to address the lacuna, thereby enabling the appeal to be disposed of economically. In the light of the employment tribunal's response, the appellant may withdraw the appeal (because the appellant considers that the reasons fatally undermine his or her grounds of appeal) or the appeal may be settled (because the reasons given tend to support the appellant's case). Alternatively, if on receipt of the amplified reasons the sift judge believes that the appeal is not arguable, either a rule 3(7) direction may be given or a preliminary hearing directed.
Conclusion
32.	I am therefore in no doubt that the EAT had the jurisdiction under the Burns procedure, before disposing finally of the appeal, to invite the Tribunal to clarify its reasoning and its findings. Alternatively, on the highly unusual facts of this case, and because the issue arose only in the remedies hearing, I am of the view that, given its own analysis, the EAT would have had the jurisdiction to dispose finally of the appeal by remitting it to the Tribunal with a direction to it to continue its remedies hearing on the basis that the appellant’s dismissal was direct sex discrimination and victimisation by Newham.
33.	I reach this conclusion by an application of the Overriding Objective in the light of this court’s observations in paragraph 42 of its judgment in Barke.  The Tribunal clearly found that the appellant’s dismissal was an act of direct sex discrimination and victimisation by Newham. It did not articulate that finding properly in its reasons.  It could, therefore, lawfully be given the opportunity to reconsider.  But the reconsideration would be a foregone conclusion. The Tribunal would undoubtedly reach the same result.
34.	It follows that if the EAT had strictly applied the Burns procedure it is highly likely that there would have had to be a further hearing before the EAT, unless Newham had bowed to the inevitable and abandoned its appeal.  However, I do not think that any injustice would be done to Newham if what I might loosely call the Burns stage were omitted on the facts of this case. Newham has had its appeal. It has had the opportunity to argue, and did argue before the EAT that the finding of direct discrimination and victimisation did not impact on  the question of the  appellant’s constructive dismissal  – see its notice of appeal to the EAT summarised in paragraph 12 above. It has argued those issues and lost – as indeed, it has lost on the waiver point.
35.	The alternative would have been for the EAT to have ordered a rehearing before a different Tribunal. Given the length of the substantive hearing in this case, such a course would be wholly disproportionate. More than that, I think it would be unjust. The parties have had their hearing, and the Tribunal has reached its conclusions on the facts. What has happened is that it has not expressed its findings properly, but – as I have already stated – those findings were properly open to it and, of themselves, are free from legal error.
36.	Speaking for myself, therefore, I would remit the appellant’s application in its entirety to the same Tribunal with the following directions: (1) that the Tribunal should formally announce and give in writing its reasons for concluding that the appellant’s constructive dismissal was an act of direct sex discrimination and victimisation.  On this point I see no need for any further evidence; (2) that unless Newham abandons its defence to issue (xxvi) there should be a liability hearing in which that issue is decided by the Tribunal and a judgment given by the Tribunal in relation to it. On this question it will be a matter for the Tribunal what further evidence, if any, it hears; and (3) that the Tribunal should conclude its remedies hearing on the basis of (1) and whatever findings it makes in relation to (2).  Since any findings in relation to (2) can, in my judgment, only go to the question of injury to feelings, I do not see why there needs to be any adjournment between the hearing of (2) and (3).
37.	These directions apart, quite how the Tribunal goes about the process described in the preceding paragraph and precisely what evidence it hears in doing so are, in my judgment, case management issues which I am prepared to leave to the Tribunal.  No doubt it would be sensible to have a hearing for directions as soon as possible, and it will, of course, be open to Newham, if so advised, to challenge the Tribunal’s ultimate conclusions on (2) and (3) in the EAT.
38.	It follows that I would remove the restriction which the EAT imposed on the remission of the issue identified in the appellant’s cross-appeal.
39.	I would, accordingly, allow the appeal, set aside the EAT’s determination  and substitute the orders identified in paragraphs 36 and 38 above, the precise terms of which should be agreed between the parties.
Lady Justice Smith:
40.	I agree
Lord Justice Buxton:
41.	I also agree.