Barke v Seetec Business Technology Centre Ltd

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.

Before we come to the question of the lawfulness of the Burns procedure and (if it is lawful) any guidance that can be given as to the parameters of its application, we shall summarise the relevant facts.

Mrs Barke was born on 27 July 1961. She was employed by Seetec Business Technology Centre Limited (“Seetec”) as a programme manager from 4 January 1999 until 19 September 2003 when she resigned. On 18 August 2003, she presented an originating application claiming disability discrimination. On 14 November 2003, she presented a second originating application claiming unfair dismissal. The two applications were heard together by the employment tribunal. The hearing took place over three days in September 2004. On 25 October, the employment tribunal sent its judgment to the parties with written reasons (which run to 81 paragraphs), and it was duly entered on the register.

Both claims were dismissed. At para 6 of the judgment, the employment tribunal identified the “key issues” as being:

“6.1

What was the nature of the impairment (the Respondents conceding that Mrs Barke was a disabled person);

6.2

Did the Respondents discriminate against Mrs Barke by subjecting her to a detriment and/or by failing to comply with their duty to make reasonable adjustments in the following respects:

6.2.1

by not providing her with reasonable parking arrangements;

6.2.2

by not complying with the recommendations of a report by Medic International in a reasonable time;

6.2.3

by not allowing her to work from home when her symptoms were particularly bad;

6.2.4

by not allowing her to have a reduced lunch break.

6.3

Was Mrs Barke constructively dismissed (if so the Respondents do not contend it was fair);

6.4

Did the Respondents discriminate against Mrs Barke by dismissing her (i.e. did Mrs Barke justifiably resign because of disability discrimination).”

It is unnecessary to set out the detailed findings of the employment tribunal. Mrs Barke appealed to the employment appeal tribunal. Her notice of appeal contains 15 grounds of appeal. The grounds which are relevant to this appeal are grounds 1-6 and 10 and 11, which are in the following terms:

“Ground 1

The employment tribunal failed to refer in connection with the Appellant’s claim that she had been dismissed within the meaning of section 95(1)(c) of the Employment Rights Act 1996 (“ERA 1996”) to the requirement imposed by the Respondent on the Applicant to work in the very hot rooms in which she (and her colleagues) in fact worked during the summer. (The Appellant claimed that this requirement was a breach of her contract of employment, whether of the implied obligation to provide a reasonably safe place to work or of the implied term of trust and confidence, or both.) The employment tribunal accordingly failed to have regard to a relevant factor, or alternatively to a material fact.

Ground 2

Alternatively, in failing to refer to this matter in its written reasons concerning the Appellant’s claim of unfair dismissal, the employment tribunal failed to give sufficient reasons for its determination that she had not been dismissed within the meaning of section 95(1)(c) of the ERA 1996.

Ground 3

Despite finding (in paragraph 25 of its reasons) that the respondent was wrong to tell the Appellant that her contract of employment required her to have an hour for lunch, the employment tribunal failed to refer, in connection with the Appellant’s claim that she had been unfairly dismissed, to the persistent refusal by the Respondent to allow the Appellant to take only a half-hour lunch break and accordingly (in the circumstances) to work an extra half an hour per day. Accordingly, the employment tribunal failed in this respect to have regard to a relevant factor, or alternatively to a material fact.

Ground 4

Alternatively, in failing to refer to this matter in its written reasons, the employment tribunal failed to give sufficient reasons for its determination that the Appellant was not dismissed within the meaning of section 95(1)(c) of the ERA 1996.

Ground 5

The employment tribunal failed to apply the proper test when determining the Appellant’s claim that she had been dismissed within the meaning of section 95(1)(c) of the ERA 1996. The employment tribunal asked itself whether each and every aspect of the Respondent’s conduct on which the Appellant relied was itself a breach of contract, instead of asking itself whether the accumulation of those aspects was a breach of the implied term of trust and confidence.

Ground 6

The employment tribunal also failed to apply the proper test when asking itself (in paragraph 79 of its written reasons) whether the “last straw” was itself a breach contract rather than whether the conduct of the Respondent which led the Appellant to resign was “an act in a series whose cumulative effect is to a amount to a breach of the implied term” of trust and confidence (applying the words of Dyson LJ in Omilaju v Waltham Forest London BoroughCouncil [2004] EWCA Civ 1493, at paragraph 19).

Ground 10

In determining in paragraph 75 of its written reasons that it was unreasonable of the Appellant to refuse the Respondent’s offer to park or move the Appellant’s car because the employment tribunal believed that “the insurance problems could have been sorted out”, the employment tribunal made a finding which was supported by no evidence.

Ground 11

Further or alternatively, in so determining, the employment tribunal wrongly failed to have regard to the evidence of the Appellant (recorded in paragraph 51 of its written reasons) that allowing an employee of the Respondent to drive the Appellant’s car for whatever reason “could result in her losing her car under the motability scheme.”

The notice of appeal was sifted by the employment appeal tribunal pursuant to the case management powers contained in para 9.5 of the 2004 practice direction. This provides for sifting “so as to determine the most effective case management of the appeal”. It also provides that the judge or registrar may stay the appeal for a period, normally 21 days

“…pending the making or the conclusion of an application by the appellant to the employment tribunal (if necessary out of time) for a review or pending the response by the employment tribunal to an invitation from the judge or registrar to clarify, supplement or give its written reasons.”

On 21 December 2004, Burton J, President, made an order which included the following:

“1.

The employment tribunal Chairman is requested, if reasonably practicable within 28 days of the date of the sealed Order, to provide the Tribunal answers to the following questions arising out of the Notice of Appeal, pursuant to Burns v Consignia (No. 2) [2004] IRLR 425:

The order gave both parties liberty to apply on notice to vary or discharge the order.

The issues arising on this appeal

We heard argument from Mr Hyams on behalf of Mr Barke and Mr Gardiner on behalf of Seetec. Mr Underhill QC appeared on behalf of the Department of Trade and Industry as intervener. The Department is responsible for the Employment Tribunals Service, which covers both employment tribunals and the employment appeal tribunal. We also heard brief submissions by Mr Green who represents Joyce Browne in her application for permission to appeal against a similar order made by a different division of the employment appeal tribunal in a different case. That application is not before us, but since the questions of principle raised in that case are the same as arise on this appeal, we allowed Mr Green to make brief submissions.

Mr Underhill made it clear that the Burns procedure is considered by the employment appeal tribunal to be an important tool of case management of appeals from the employment tribunal. In Burns, Burton J said:

“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 Lord Phillips of Worth Matravers MR, who plainly intended it to be of universal application so far as the courts are concerned, in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409.

..….

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 to actually 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 of 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 rehearing ordered before a fresh tribunal. That can take an enormous amount of time, because there has already 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 & Strick Ltd (Practice Note) [2002] 1 WLR 2409 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.”

This provides:

“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.”

The order made by Burton J in Burns was explicitly made pursuant to the power given by section 35(1) of the 1996 Act. Both Mr Underhill and Mr Gardiner submit that this provision gives the employment appeal tribunal jurisdiction to operate the Burns procedure. The point was considered, albeit obiter, by this court in Tran v Greenwich Vietnam Community Project [2002] EWCA Civ 553; [2002] ICR 1101. Brooke and Arden LJJ said that section 35(1) did not give the employment appeal tribunal jurisdiction to make a direction of this kind. Sedley LJ disagreed. Arden LJ said at para [36] of her judgment that the power of remission could only be utilised where the tribunal was “making a final order on an appeal”. A court or tribunal could not be said to be “disposing” of an appeal if it simply made an interim order such as would be involved in remitting a case to the employment tribunal to clarify its reasons prior to a further hearing of the appeal. Brooke LJ agreed saying at para [51] that to remit a case to the employment tribunal for fuller reasons while retaining jurisdiction over the appeal would not be to dispose of the appeal. Retaining an appeal is wholly different from disposing of it. Sedley LJ on the other hand said at para [21] that he would have held that the section 35 power is not confined to orders made at the conclusion of an appeal: “it exists “for the purpose of disposing of an appeal” and “can therefore in my judgment be exercised at any appropriate stage.”

In Burns, Burton J declined to follow the dicta of the majority in Tran. He said at para [18] that an order seeking the answer to a particular question was made for the purposes of disposing of the appeal once that question had been answered. In any event, it was now necessary to take account of the decision of this court in English v Emery Reimgold & Strick Ltd [[2002] EWCA Civ 605, [2002] 1 WLR 2409. At para [19.2], Burton J said:

“We are satisfied, however, particularly given what would appear to us to be a straightforward interpretation of the words “for the purpose of disposing of the appeal”, that if, now, further consideration is given to the construction of section 35 of the Employment Appeals Act 1996, any hostility to the idea of a second bite of the cherry, which must have informed the basis of the views of the majority of the Court of Appeal in Tran v Greenwich Vietnam Community Project, would be overtaken and ousted by the contrary conclusion of Lord Phillips of Worth Matravers MR in English v Emery Reimhold & Strick Ltd…”.

Burton J made the same point at para [18] of his judgment in Adebowale v Peninsula Business Services Limited (unreported) 20 January 2003. In English, Lord Phillips MR, giving the judgment of the court, said:

“24.

We are not greatly attracted by the suggestion that a judge who has given inadequate reasons should be invited to have a second bite at the cherry. But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons. Where the judge who has heard the evidence has based a rational decision on it, the successful party will suffer an injustice if that decision is appealed, let alone set aside, simply because the judge has not included in his judgment adequate reasons for his decision. The appellate court will not be in as good a position to substitute its decision, should it decide that this course is viable, while an appeal followed by a rehearing will involve a hideous waste of costs.

25.

Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent.”

For reasons that will become apparent, English has important implications for this appeal, but we do not see that it has any relevance to the meaning of section 35(1) of the 1996 Act, which involves a pure question of statutory interpretation.

We are in no doubt that the majority view expressed in Tran is correct. It was not informed by any hostility to a second bite of the cherry: it was simply based on a natural and ordinary reading of the statutory words.

Mr Underhill submits that the majority in Tran wrongly treated the phrase “for the purpose of” as meaning “by way of”. The phrase “for the purpose of” is apt to cover any step which is taken in order to assist the employment appeal tribunal to make a decision. The word “remit” is natural to describe a request of the kind sanctioned by the Burns procedure. He points out that at para [25] of the judgment in English, Lord Phillips MR used the word “remitting” to describe an invitation to the lower court of the kind that is envisaged by the Burns procedure. Mr Gardiner submits that the word “dispose” can mean “regulate” as well as “deal conclusively with”. In the context of section 35(1), he submits that it should not be read as meaning or being limited to meaning “deal conclusively with”.

In our view, the words “disposing of” in section 35 clearly mean “dealing conclusively with” and not “regulating”. Even on Burton J’s construction of the sub-section, the power to remit in section 35(1)(b) includes the power to remit on a final determination of an appeal. A remission by way of a final determination could not be characterised as an act of regulating an appeal. It is clear that Burton J considered that the phrase “disposing of” means “dealing conclusively with” (the meaning accepted by Mr Underhill), and he was right to do so.

If, as Mr Underhill contends, the words “for the purpose of disposing of an appeal” mean “for the purpose of disposing of the appeal in due course”, they are mere surplusage. It goes without saying that everything that the employment appeal tribunal does when it is seised of an appeal is done with a view to the eventual disposing of the appeal. If it had been intended that these powers could be exercised at any stage of the process, then the words “for the purpose of disposing of an appeal” would serve no useful purpose. But in our view, the phrase “for the purpose of disposing of an appeal” does serve a purpose: it is to limit the scope of sub-section (1)(a) and (b). These words make it clear that the employment appeal tribunal can only exercise the powers given by those paragraphs when finally disposing of the appeal, and at no other stage.

So far as material, rule 30 provides:

“Reasons

30.

– (1) A tribunal chairman must give reasons (either oral or written) for any

(a)

judgment; or

(b)

order, if a request for reasons is made before or at the hearing at which the order is made.

(2)

Reasons may be given orally at the time of issuing the judgment or order or they may be reserved to be given in writing at a later date. If the reasons are reserved, they shall be signed by the chairman and sent to the parties by the Secretary.

(3)

Subject to paragraph (1), written reasons shall only be provided:-

(a)

in relation to judgments if requested by one of the parties within the time limit set out in paragraph (5); or

(b)

in relation to any judgment or order if requested by the Employment Appeal Tribunal at any time.

(4)

When written reasons are provided, the Secretary shall send a copy of the reasons to all parties to the proceedings and record the date on which the reasons were sent. Written reasons shall be signed by the chairman.

(5)

A request for written reasons for a judgment must be made by a party either orally at the hearing (if the judgment is issued at a hearing), or in writing within 14 days of the date on which the judgment was sent to the parties. The time limit may be extended by a chairman where he considers it just and equitable to do so.”

In our judgment, there is nothing in the language of these rules which prohibits the employment appeal tribunal from making a request for further written reasons under rule 30(3)(b) where the employment tribunal has already provided some written reasons. As Mr Gardiner points out, to contend otherwise requires the words “if not already provided” to be read into the rule. There is no warrant for this. The wording of rule 30(3)(b) permits the employment appeal tribunal to request written reasons in relation to any judgment or order at any time. On the face of it, therefore, rule 30(3) appears to provide appropriate authority for the Burns procedure.

But, it is submitted, particularly by Mr Green who relies for this purpose on the decision of Morison J in Reuben v Brent London Borough Council [2000] ICR 102, that, once an employment tribunal has given written reasons, it is functus officio and cannot provide (and therefore cannot be asked to provide) further reasons or an explanation of the reasons already given.

In Reuben, at an interlocutory hearing the employment appeal tribunal had remitted the case to the employment tribunal in order to amplify its reasons on a particular issue or to direct that further evidence be given on that issue. Such an order was based on the decision in Yusuf v Aberplace Ltd [1984] ICR 850 and was, in effect, an application of the procedure later approved in Burns. On the adjourned hearing of the appeal, the employment appeal tribunal held that once the judgment and any written reasons of an employment tribunal have been entered on the register, the tribunal is functus officio, and it is improper for it to comment on the grounds of an appeal, or to try to improve the decision or to fill in gaps. The only circumstances in which an employment tribunal may make comment is where there is an allegation of bias, and the tribunal’s views are being solicited to establish facts relating to the conduct of the hearing, and not in relation to the terms of the decision itself. The other circumstance where a tribunal chairman may be asked to do something after the decision has been made is when the chairman is asked to provide the record of the proceedings, namely his notes of the evidence. Morison J held that Yusuf was wrongly decided. It followed that, as a matter of jurisdiction, an employment appeal tribunal was not entitled to remit the case to the employment tribunal for amplification or clarification of its reasons without allowing the appeal.

We doubt whether Morison J was right to hold on the basis of the rules of procedure then in force that, once the decision of an employment tribunal is entered in the register, it is functus officio, so that it cannot receive and respond to questions of the kind envisaged by the Burns procedure. But it is clear that under the current rules of procedure there are several functions that the employment tribunal can perform after its judgment and any written reasons have been entered on the register in accordance with rule 32. First, rule 37 provides that clerical mistakes in any judgment, decision or reasons, or errors arising in those documents from an accidental slip or omission may be corrected “at any time”. Secondly, as Morison J accepted, the tribunal may respond to a call for the chairman’s notes of the proceedings. This is not based on a formal statutory rule. Rather, it is based on a rule of practice, which is now codified in para 7.4 of the 2004 practice direction. Thirdly, rules 34 to 36 provide that the employment tribunal may review certain judgments and decisions. These include any judgment other than a default judgment. Rule 34(3)(e) provides that a judgment may be reviewed on the grounds that “the interests of justice require such a review”. A tribunal may review its judgment on its own initiative. An application for a review by the parties must be made within 14 days of the date on which the decision was sent to the parties, but the 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.

Thus, there are important functions that may be performed by the employment tribunal after copies of its judgment and written reasons have been entered on the register. The review function is potentially very important. The power in rule 34(3)(e) is on its face of wide ambit. It was recently held in Williams v Ferrosan Ltd [2004] IRLR 607 that the corresponding power in the previous rule in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (Regulation 10 and Schedule 1 rule 13(1)(e)) should not be construed, as had earlier been held, as if it were exercisable only in exceptional circumstances.

On any view, therefore, it would be incorrect to say that the employment tribunal is functus officio for all purposes once copies of its judgment and reasons have been entered on the register. If the employment tribunal is still able to perform these important functions after copies of the judgment and written reasons have been entered on the register, we cannot see why, in the absence of an express prohibition, it should not be able to comply with a request for further information pursuant to the Burns procedure after copies of the judgment and written reasons have been entered on the register. A typical reason why the employment appeal tribunal may wish to see the chairman’s notes is that one of the grounds of appeal is that the employment tribunal failed to deal with an issue that was raised before it, or failed to take into account some important evidence. The chairman’s notes may cast light on the question whether the issue was in fact raised or whether the evidence was in fact adduced. If there is jurisdiction to ask for and provide the chairman’s notes for that purpose, it is difficult to see why there should not be jurisdiction to ask for and provide answers to the direct question whether the issue was raised or the evidence adduced.

More generally, rule 30(1) provides that the employment tribunal or chairman “must give reasons (either oral or written) for any (a) judgment…” If the employment tribunal has not complied with this duty either because it has not provided reasons at all, or because its reasons are inadequate, it cannot be said to be functus officio. That was the reasoning in Yusuf at p 854B. In the same way, a court which has given a judgment whose reasons are, at least arguably, deficient is not functus officio and is able to respond to a request from the court of appeal for amplification or clarification of its reasons: see the decision in English.

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, section 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 paras [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.

We conclude, therefore, that the employment appeal tribunal has the power to invite the employment tribunal to amplify its reasons.

Burton J has given comprehensive guidance as to the circumstances in which, when allowing an appeal, it is appropriate for the employment appeal tribunal to remit a case for reconsideration by the employment tribunal whose decision has been set aside (rather than to a different tribunal): see Sinclair Riche & Temperley v Heard [2004] IRLR 763 paras [45-46]. But the guidance given by the employment appeal tribunal as to the application of the Burns procedure has been more exiguous. It is to be found at para [13] of Burns to which I have referred at para [11] above.

Mr Hyams submits that there is a close analogy between an appeal against the decision of an employment tribunal on the grounds of inadequate reasons and a reasons challenge in judicial review proceedings. He submits, therefore, that the employment appeal tribunal should request amplification of the employment tribunal’s reasons only in circumstances where the administrative court would take into account subsequent additional reasons put forward by a decision-maker in response to a judicial review challenge. This was the approach which was adopted by Stanley Burnton J in VK. But it is to be noted that in that case it was conceded on behalf of the county council that for these purposes the decision of a SENDIST could not be distinguished from the decision of a local housing authority such as was considered by this court in R (Ermakov) v Westminster City Council [1996] 2 All ER 302.

In Ermakov, judicial review was sought of the decision of a local housing authority that the applicant had become homeless intentionally. The statute required the decision and the reasons to be given at the same time. In judicial review proceedings, the authority submitted evidence which purported to give the true reasons for the decision, which differed from those stated in the decision letter. The question was whether the court should take account of the later “true” reasons. Hutchison LJ gave the leading judgment. He said at p 315H:

“(2)

The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ’s observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker’s explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.

(3)

There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.”

On the basis of this reasoning, Mr Hyams submits that the Burns procedure should be applied with considerable caution, and adopted only in the tightly defined circumstances described by Hutchison LJ. If the procedure should only be adopted in these limited circumstances, it is clear that the order that was made in the present case (which is by no means unusual) should not have been made.

We do not accept that the Ermakov approach should govern the way in which the Burns procedure should be applied. First, even in judicial review proceedings, the Ermakov approach is not adopted uniformly. The correct approach depends on the statutory context and the circumstances of the particular case. As was explained by Richards J in a passage approved by this court in R (Richardson and another) v North Yorkshire County Council and others [2003] EWCA Civ 1860, [2004] 1 WLR 1920 at para [33]:

“47.

The consequences of a failure to comply with a requirement to give reasons depend very much on statutory context and the particular circumstances of the case. The authorities cited by counsel cover a range of different situations. In evaluating them it is also important to bear in mind that there has been, as it seems to me, a tendency in recent years to adopt a stricter approach to the requirement to give reasons and to be readier to quash a decision for failure to give reasons and less ready to allow a deficiency of reasons to be cured by the provision of reasons or supplemental reasons at a later stage.

48…..Although these and the other cases to which I have been referred provide general guidance, they do not lay down a principle that is determinative of the present case. There is no substitute for a careful examination of the particular statutory context and the precise nature of the requirement to state reasons in each case.”

Moreover, unlike the local housing authority in Ermakov and a SENDIST in VK, the employment tribunal is not required to give its reasons at the same time as it gives its judgment. In both Ermakov and VK, the court regarded the fact that reasons were required by statute to be given at the same time as the decision as an important reason for restricting the scope of the ability of the decision-maker subsequently to supplement or contradict its reasons. In Ermakov, Hutchison LJ said that, because the statute requires a decision and reasons to be given at the same time, an applicant is prima facie entitled to have the decision quashed as unlawful if no reasons or wholly deficient reasons are given. In VK, Stanley Burnton J distinguished Burns on the grounds that there is no statutory obligation on an employment tribunal to give reasons at the same time as the decision.

But secondly and more fundamentally, there is no true analogy between a judicial body like a court or an employment tribunal and other statutory bodies whose decisions are susceptible to judicial review. We would wish to reserve our position as to whether Stanley Burnton J was right to treat the decision of a SENDIST on a disability discrimination claim as being for these purposes analogous to the decision of a local housing authority on an issue of intentional homelessness. We would question whether the fact that in both cases the reasons are required to be given at the same time as the decision is a sufficient reason for assimilating the two cases. This issue does not, however, fall to be decided on this appeal.

Judges are different from other decision-makers. Their function is to decide disputes between opposing parties in accordance with the law. They are expected to demonstrate a very high degree of professionalism. As Burton J pointed out in Sinclair Roche at para [46.6]

“46.6

Tribunal professionalism. In the balance with all the above factors, the appellate tribunal will, in our view, ordinarily consider that, in the absence of clear indications to the contrary, it should be assumed that the tribunal below is capable of a professional approach to dealing with the matter on remission. By professionalism, we mean not only the general competence and integrity of the members as they go about their business, but also their experience and ability in doing that business in accordance with the statutory framework and the guidance of the higher courts.”

One of the reasons Hutchison LJ gave in Ermakov for the restrictive view he expressed as to the circumstances in which it would be right for the court to take account of subsequent reasons was that it would lead to applications to cross-examine the decision-maker and for further disclosure. But in our view there would be no question of cross-examination of a judge on his or her amplification or clarification of reasons: see in a somewhat different context Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, 477H.

Moreover, the effect of taking into account subsequent reasons put forward by a decision-maker in judicial review proceedings is likely to be quite different from the effect of an appellate court or tribunal asking the lower court or tribunal for further reasons. As Hutchison LJ pointed out in Ermakov, if additional reasons are taken into account in judicial review proceedings, this may lead to applications “thereby making hearings longer and more expensive.” The rationale of the approach recommended in English and the Burns procedureis to save the cost of expensive appeals based on lack of reasons.

Litigation has to be managed efficiently and in accordance with the overriding objective of dealing with cases justly (CPR 1.1(1)), which includes inter alia so far as practicable saving expense and ensuring that cases are dealt with expeditiously. Similarly, rule 3 of the 2004 Employment Appeal Tribunal Regulations provides that the overriding objective of the regulations is to enable tribunals and chairmen to deal with cases justly, which includes, so far as practicable, “(b) dealing with cases in ways which are proportionate to the complexity or importance of the issues; (c) ensuring that it is dealt with expeditiously and fairly; and (d) saving expense”.

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.

If the Burns procedure is rarely adopted where lack of reasons forms the basis of one or more of the grounds of appeal, then, on the assumption that the reasons are indeed inadequate, the appeal must proceed to a full hearing at which the appeal will be allowed and the case remitted for reconsideration. This commits the parties to the cost and delay of a full hearing before the employment appeal tribunal, which might otherwise be unnecessary. It also commits the parties to the cost and delay of the reconsideration by the employment tribunal. This reconsideration will certainly be many months after the original decision. It was considerations of this kind that led the court of appeal in English to make the recommendation that it did. Although Lord Phillips MR did not say what limitations, if any, there should be to the exercise of this jurisdiction, it is implicit in his judgment that he did not consider that this was a power that should only be exercised sparingly and in narrow circumstances such as those stated in Ermakov.

Mr Hyams points to the warnings given by Hutchison LJ in Ermakov, repeated by Stanley Burnton J in VK . At para [79] of VK, Stanley Burnton J said:

“Furthermore, although I do not suggest that the Tribunal in the present case would tailor its supplementary reasons to meet the appellant’s criticisms, if the practice of permitting supplementary reasons were to be followed generally, the temptation would be created.”

He submits that these salutary observations need to be borne in mind by the employment appeal tribunal when exercising its jurisdiction under the Burns procedure. It will in practice be impossible to prove that a tribunal which expanded on its original reasons did in fact succumb to this temptation. The fair-minded and reasonable observer, even if satisfied that the tribunal’s integrity could not be doubted, might well suspect that it had succumbed to the temptation, albeit only subconsciously. It is important to guard against the appearance of bias: see Porter v Magill [2001] UKHL 67, [2002] AC 357. For this reason, the jurisdiction should be exercised cautiously, and along the lines suggested by Hutchison LJ in Ermakov.

As Burton J recognised in Burns at para [13], there are dangers in asking the original tribunal for further reasons where the ground of appeal is inadequacy of reasoning. It will not be appropriate where the inadequacy of reasoning is on its face so fundamental that there is a real risk that supplementary reasons will be reconstructions of proper reasons, rather than the unexpressed actual reasons for the decision. Nor will it be appropriate where there have been allegations of bias (unless, perhaps, where these are manifestly unfounded). The employment appeal tribunal should always be alive to the danger that an employment tribunal might tailor its response to a request for explanations or further reasons (usually subconsciously rather than deliberately) so as to put the decision in the best possible light.

But there are also dangers in remitting a decision or part of a decision to the original tribunal on a final disposal of an appeal. There is the possibility (however unlikely) that the tribunal will cynically reach the same decision as on the first occasion, approaching the case with a closed mind, and providing apparently sound reasons for its decision, thereby making up for the shortcomings in its earlier decision. More likely, there is the danger that the tribunal will subconsciously want to reach the same decision as on the first occasion and, therefore, approach its task with a closed mind. These dangers undoubtedly exist. But the employment appeal tribunal rightly remits cases or particular issues in cases to the original tribunal in order to save time and avoid the expense of a remission to a new tribunal. The considerations enumerated by Burton J in Sinclair Roche are of relevance here. The employment appeal tribunal must in each case make a judgment of how serious the dangers are. They have to weigh the danger that the tribunal will tailor its answers to the request for further reasons against the benefit of having those reasons. It is important to keep in mind that the purpose of the Burns procedure is to elicit historical facts from the tribunal: what were the reasons for this finding? Why is there no finding on that issue? Why is there no reference to that apparently important piece of evidence? And so on. There should not be much scope for a professional and honest tribunal, unwittingly or otherwise, to give misleading answers to such questions. It seems to us that there is a greater danger that, on a remission to the original tribunal after a successful appeal, the tribunal will subconsciously wish to reach the same conclusion as on the first occasion. And yet, the employment appeal tribunal routinely remits cases or issues to the original tribunal. The same approach is adopted by the court of appeal. The underlying justification for this is that judges and members of employment tribunals are trusted for their professionalism and integrity and, in many cases, it is better to remit to the original court or tribunal.

We would, therefore, uphold the Burns procedure. It is of considerable benefit for the reasons identified by Burton J (see para [11] above). The employment appeal tribunal needs to guard against the obvious dangers to which we have referred. We do not think it appropriate to seek to say more about the way in which the jurisdiction should be exercised. Burton J may wish to consider whether to amplify the guidance he has already given.

We would add that in our view this court should be slow to interfere with the way in which the employment appeal tribunal has exercised the jurisdiction in any individual case. It is a discretionary power in the exercise of case management. It is classically the type of decision which should be left to the employment appeal tribunal to make. We were told that, when making orders pursuant to the Burns procedure, the employment appeal tribunal always gives the respondent liberty to apply on notice to vary or discharge the order. That is entirely correct. If a respondent wishes to challenge an order, in the first instance application should be made to the employment appeal tribunal pursuant to the liberty to apply. On such an application, the employment appeal tribunal can review its order. It will rarely be appropriate to appeal to this court against an order unless an application to discharge or vary has first been made.

No application was made by Mrs Barke to discharge or vary the order made in this case. This was probably because the focus of the argument advanced on her behalf has been on the very lawfulness of the Burns procedure and (if it is lawful) the limit of its parameters. That is also why we heard little argument on the details of the order that was made in this case. We are in no doubt that the requests for further reasons and information that were made by Burton J were well within the discretion enjoyed by the employment appeal tribunal in exercising this jurisdiction. They were clearly calculated to further the overriding objective of saving expense, and the employment appeal tribunal were entitled to take the view that the benefit of taking this course outweighed any danger that the employment tribunal would not answer the questions accurately.

We, therefore, dismiss this appeal.

By way of postscript we would add that the order in the present case (see para [7] above) was not as happily expressed as other orders that we were shown by Mr. Underhill. In particular, it is not immediately apparent from the words “Chairman is requested….to provide the Tribunal answers to the following questions…”, whether “the Tribunal” is the employment tribunal or the employment appeal tribunal, and, if the latter, whether the reasons being sought are those of the chairman or the employment tribunal. The order should make it clear that what is being requested is the reasons of the employment tribunal.

The Appeal is dismissed.

The Appellant shall pay the Respondent’s costs of the Appeal, to be assessed by detailed assessment on the standard basis if not agreed.

The Appellant shall pay the sum of £5,000 on account of the costs of the Appeal, pursuant to CPR 44.3(8) on or before 27^th June 2005.

Permission to appeal to the House of Lords is refused.