Appeal No. UKEAT/0178/07/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 June 2007

Before
	HIS HONOUR JUDGE CLARK	
(SITTING ALONE)

DR S VARMA	APPELLANT

NORTH CHESHIRE HOSPITALS NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR OLIVER HYAMS
(of Counsel)
Instructed by:
Messrs Ormerods Solicitors
Unit 1 Printers Yard
90A The Broadway
Wimbledon SW19 1RD	
For the Respondent	MR RICHARD BRADLEY
(of Counsel)
Instructed by:
Messrs Mace & Jones Solicitors
Drury House
19 Water Street
Liverpool L2 ORP	

SUMMARY
PRACTICE AND PROCEDURE
Appellate jurisdiction/Reasons/Burns-Barke
Whether, following a successful appeal to the EAT leading to remission of an issue to a fresh ET for rehearing, the new ET is bound by findings of fact made by the original ET.  Answer: No.

HIS HONOUR JUDGE CLARK
1.	This case is proceeding in the Liverpool Employment Tribunal.  The parties are Dr Varma, Claimant, and North Cheshire Hospitals NHS Trust, Respondent.  I shall so describe them.  There is before me an appeal by the Claimant against a case management order made by a Chairman Mr K E Robinson contained in a letter to the parties dated 8 February 2007.  That letter must be read in conjunction with certain orders made by the Chairman dated 21 December 2006, following a case management discussion held on 15 December.

Background
2.	The Claimant commenced employment with the Respondent as a pre-registration house officer on 1 August 2001.  He resigned on 15 May 2003.  

3.	Thereafter he commenced Employment Tribunal proceedings complaining of unlawful sex and race discrimination, constructive unfair dismissal, breach of contract and detrimental treatment as a result of him making protected disclosures.  Those claims were resisted by the Respondent.  

4.	The matter came on for hearing before a Employment Tribunal chaired by Mr Lloyd Parry sitting on 21 - 29 June 2004.  The Claimant then represented himself.   All claims were dismissed by a decision with reasons promulgated on 17 August 2004 (the Lloyd Parry Tribunal decision).  

5.	Against that decision the Claimant appealed.  At the full hearing before the EAT, on which I sat, held on 28 June 2006, the appeal presented by Counsel, Mr Price-Rowlands, challenged only the Lloyd Parry Tribunal’s finding that the Claimant was not constructively dismissed by the Respondent.  It follows that all other complaints stand dismissed and cannot now be revived.  

6.	We allowed the appeal, remitting the issue of constructive dismissal (and any consequent issues of fairness and contribution by the Claimant) to a fresh Tribunal for re-hearing, for the reasons contained in the judgment which I delivered on behalf of the EAT that day (the EAT judgment).  

7.	Thereafter, at the case management discussion held before Mr Robinson on 15 December 2006 an issue arose between Counsel now appearing before me as to whether the new Employment Tribunal should see the Lloyd Parry Tribunal decision and other documents generated in the lead up to that Employment Tribunal hearing together with the EAT judgment and documentation leading up to that judgment.  No ruling was then made by the Chairman and further representations were directed in writing.  Having considered those representations by Counsel, Mr Robinson ruled, by the letter of 8 February 2007, the subject of this appeal, that the earlier documents, listed in the second part of paragraph 14 of his CMD order dated 21 December, should be included in the bundles for the new Employment Tribunal.  In advancing the case for ruling that material inadmissible at the re-hearing Mr Hyams relied on the judgment of Ognall J sitting in the Queen’s Bench Division in R v Special Education Needs Tribunal Ex Parte Fisher [1999] ELR 417.  In giving reasons for his ruling that the material was admissible at the rehearing the Chairman said this in the letter dated 8 February: 

“The case of Fisher is distinguishable on the basis that in Fisher case the whole decision was quashed.  In the present case it is imperative that the new Tribunal does not waste time going over matters which have been decided and not challengeable and they will also need to understand which findings of fact have already been made.  The 2004 decision [the Lloyd Parry Tribunal decision) will, therefore, be of considerable assistance to that Tribunal and assist it in dealing with the claim as it presently stands justly and fairly.”

The present Appeal
8.	Mr Hyams submits that the Lloyd Parry Tribunal decision and the other documents relating to that decision, listed in paragraph 3 of the Notice of Appeal, are not relevant to the issues before the new Employment Tribunal.  For the avoidance of doubt those documents are as follows:  

3.1	 the Employment Tribunal’s direction of 21 November 2003;  

3.2	 the Appellant’s submissions to the ET, whose decision in relation to the Appellant’s claim of unfair dismissal was overturned by the Employment Appeal Tribunal (EAT) on 28 June 2006;  

3.3	the Respondent’s original submissions on liability and contributory fault made to the ET in relation to the Appellant’s original claim of, among other things, unfair dismissal;  

3.4	the decision of the ET dated 17 August 2004 dismissing all of the Appellant’s claims, including his claim of unfair dismissal; 

 3.5	the decision of the ET dismissing the Appellant’s application for a review of its decision dated 17 August 2004;  

3.6	the re-amended Notice of Appeal to the EAT, which led to the determination of the EAT on 28 June 2006;  

3.7	 the Respondent’s amended answer to that re-amended Notice of Appeal;  

3.8	the order of the EAT dated 30 September 2005;  

3.9 	A letter dated 3 February 2006 from the EAT;  

3.10 	The judgment of the EAT dated 28 June 2006;  and  

3.11	a decision of the General Medical Council dated 19 September 2006 concerning the Appellant’s fitness to practice.

9.	Mr Hyams maintains his reliance on the ruling in ex parte Fisher.  The relevant passage from the judgment of  Ognall J reads as follows:

“The decision of the Special Educational Needs Tribunal in this instance is called into question by an application for leave to move to quash a determination of that tribunal, through the chairman for that purpose, dated 13 April 1999, namely, to include for appraisal by members of a freshly constituted tribunal papers relating to the earlier decision of the same tribunal, which in its turn was quashed on appeal to this court.
In my clear judgment the applicant is entitled to relief in that regard and, accordingly, the decision to include not only the original tribunal decision papers, but what I shall describe broadly as the papers relating to the Ord 55 proceedings of 14 October 1998, must be quashed.  Any papers hereafter to be submitted to the Chairman and members of a freshly constituted tribunal will not include any of those papers.”

10.	Mr Hyams draws an analogy between the order made under RSC order 55 in that case, quashing the earlier decision of the Tribunal and the order made by the EAT in this case, setting aside the decision of the Lloyd Parry Tribunal on constructive dismissal and remitting that issue to a fresh Employment Tribunal for re-hearing.  He contends that the Lloyd Parry Tribunal decision is irrelevant to the fresh Tribunal’s consideration of the remitted issue, indeed it may improperly influence the new Employment Tribunal in its fact finding task.  Far from being bound by the Lloyd Parry Tribunal’s finding of fact, as Mr Robinson thought was the case, it is for the new Employment Tribunal to hear the evidence and reach its own findings of fact in order to determine the remitted question

11.	That said, Mr Hyams acknowledges (a) that evidence given before the Lloyd Parry Tribunal may become admissible if evidence given by a witness at the re-hearing is inconsistent with his or her earlier evidence and (b) it may be material for the new Employment Tribunal to see the EAT judgment.  

12.	Mr Bradley, on the other hand, submits that the Chairman was correct to rule that material findings of fact by the Lloyd Parry Tribunal are binding on the new Employment Tribunal;  it is therefore necessary and relevant for the new Tribunal to see the Lloyd Parry decision to identify those earlier findings of fact.  It would be inappropriate, he argues, for two Employment Tribunals to make conflicting findings of fact in circumstances where the Lloyd Parry Tribunal’s decision on the Claimant’s complaints of race and sex discrimination, breach of contract, and public interest disclosure detriment stand.  Any such conflicting findings would undermine the proper administration of justice.

Discussion
13.	In allowing an appeal from an Employment Tribunal there are a number of options open to the EAT.  It may reverse that decision or it may remit the matter to the same or a fresh Employment Tribunal.  Indeed, before finally determining the appeal the EAT may, in an appropriate case, refer specific questions back to the Employment Tribunal and, if necessary, seek further findings, under the Burns/Barke procedure;  see Barke v SEETEC [2005) IRLR 633.  That was a course urged on me earlier in these proceedings by Mr Bradley on behalf of the Respondent.  I ruled against that submission at a directions hearing heard on 10 May 2006.  

14.	A case will be referred back where there is a lacuna in the Tribunal’s original reasoning.  The EAT will not do so in order to give the Employment Tribunal an opportunity to reconstruct proper reasons for their decision, as opposed to articulating that which was silent in the original reasons.  

15.	Similarly, a case may be remitted back to the same Employment Tribunal where no further fact-finding is necessary in order to determine outstanding issues identified by the EAT.  The principles are fully set out by Burton J (President) in Sinclair Roach & Temperley & others v Heard [2004] IRLR 763.  Mr Hyams has referred me particularly to paragraphs 46-47 of the former President’s judgment in that case.  

16.	In the first appeal, Mr Bradley, on behalf of the Respondent, submitted that it would not be proportionate to allow the appeal and remit the matter to a fresh Employment Tribunal for re-hearing, thus involving the parties in a further 3-4 day hearing (see Judgment paragraph  15);  we rejected that submission (paragraph 17).  It follows that it was the express intention of the EAT on the last occasion that the issue of constructive dismissal should be the subject of a complete re-hearing;  the new Employment Tribunal to hear the evidence;  make its own findings of fact and reach conclusions on the issues raised in the constructive dismissal question based on their own findings.  The purpose of the remission was not to preserve the Lloyd Parry Tribunal’s findings of fact for that purpose.  To that extent the present case is similar to that of ex parte Fisher.  

17.	I do not see that this causes any difficulty as far as the preserved Lloyd Parry conclusions on the other complaints, of race and sex discrimination, breach of contract and public interest disclosure are concerned.  Those findings stand and the Claimant is estopped from pursuing those complaints in any further proceedings, including at the remitted hearing due to commence on 11 June 2007.

18.	 In these circumstances the appeal, for the most part, succeeds.  I am satisfied that the 11 documents listed at paragraph 3 of the Notice of Appeal are irrelevant and inadmissible at the next Employment Tribunal hearing, subject to the following qualifications:

(1)	As Counsel now agrees, the Employment Tribunal directions dated 21 November 2003 (Notice of Appeal paragraph 3.1) are properly to be included in the new Employment Tribunal trial bundle.  
(2)	As Mr Hyams properly accepts, if a witness at the next Employment Tribunal hearing gives evidence which is inconsistent with evidence which that witness gave before the Lloyd Parry Tribunal, any document which tends to establish such inconsistency is admissible in the same way that evidence given at a first criminal trial is admissible at a re-trial (whether caused by jury disagreement at the first trial or an order of the Court of Appeal) as evidence of a previous inconsistent statement.
(3)	The EAT judgment, Notice of Appeal paragraph 3.10, may be placed before the new Employment Tribunal.  It seems to me that the fresh Tribunal should be aware of it and thus avoid the error of approach by the first Tribunal which led to that Tribunal’s decision being overturned on appeal.  

19.	By way of postscript I would add these observations.  The effect of allowing the first appeal and remitting the issue of constructive dismissal to a fresh Employment Tribunal for re-hearing is effectively to render the first Employment Tribunal’s decision on that issue null and void.  No question of issue estoppel can arise at the remitted hearing.  The earlier Tribunal’s findings of fact, insofar as they bear on the issue of constructive dismissal and any consequential issues of fairness and remedy are not binding on the new Employment Tribunal.  

20.	Secondly, I note that at paragraph  16 of the EAT judgment I said this:
“16.As to the predetermination issue, we accept, of course the Tribunal’s finding of fact that there was no evidence that the Panel appointed to hear the Claimant’s disciplinary was in fact corrupt as suggested by him.”  

21.	It seems to me that a distinction must be drawn between the EAT’s jurisdiction to determine appeals on points of law and the function of a fresh Employment Tribunal at a re-hearing after an appeal is allowed.  In the case of the EAT, it has no power to retry the facts;  it can only interfere where an error of law is disclosed in the Employment Tribunal’s approach;  however, on remission, following a successful appeal, it is for the fresh Tribunal to hear the matter de novo.  It must hear the evidence and reach its own findings of fact regardless of those made by the first Tribunal.  

22.	Thirdly, it will be for the fresh Employment Tribunal to consider any application by Mr Bradley to exclude matters which were not raised by the Claimant before the Lloyd Parry Tribunal.  That is a matter of case management for the new Employment Tribunal, not for me.  

23.	Finally, for the avoidance of doubt, the implied term of mutual trust and confidence is as formulated by Brown-Wilkinson P in Woods (cf.  the EAT Judgment paragraph 10).  The formula ‘calculated and likely to destroy or seriously damage the relationship’ quoted in Harvey, is taken from a passage in the speech of Lord Steyn which does not truly reflect his Lordship’s opinion in that case.  For a full discussion see Baldwin v Brighton City Council (2007) IRLR 232.  The correct formulation is ‘calculated or likely’. 

24.	To the extent indicated in this judgment, which will be transcribed and copied to the Employment Tribunal and the parties, this appeal is allowed.