Before: LORD JUSTICE SULLIVAN and - THE UNIVERSITY OF MANCHESTER

Transcription

1 Case No: A2/2010/2941 Neutral Citation Number: [2011] EWCA Civ 592 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL Before: LORD JUSTICE SULLIVAN Royal Courts of Justice Strand, London, WC2A 2LL Date: Wednesday, 13 th April 2011 FAULKNER Respondent - and - THE UNIVERSITY OF MANCHESTER Appellant (DAR Transcript of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: Fax No: Official Shorthand Writers to the Court) Mr S Gorton QC (instructed by EAD Solicitors) appeared on behalf of the Appellant. The Respondent did not appear and was not represented. Judgment (As Approved by the Court) Crown Copyright

2 Lord Justice Sullivan: 1. This is a renewed application for permission to appeal against the order dated 1 November 2010 of the Employment Appeal Tribunal ( the EAT ) allowing the respondent s appeal against the judgment of the Employment Tribunal ( the ET ) dated 27 November 2009 that the appellant had been unfairly dismissed, and that he had suffered a detriment by reason of making a protected disclosure. The EAT remitted the appellant s claims to a differently constituted ET. 2. The summary of the EAT s judgment explains why it allowed the appeal: The Employment Tribunal set out the arguments and evidence advanced on behalf of the Claimant but failed to set out the arguments and material evidence advanced on behalf of the Respondent. The Tribunal did not set out a proper evidential basis for the conclusions reached. The judgment was not Meek compliant. The reference to Meek is to the decision of Meek v City of Birmingham District Council [1987] IRLR The grounds of appeal contended that the Meek point had not been raised in the grounds of appeal to the Employment Appeal Tribunal, so the EAT should not have considered it. It was further contended that the ET s reasoning was adequate, and that even if it was not, then remitting the claims to another tribunal was disproportionate. The EAT should simply have asked the ET to explain its reasoning in more detail. 4. When refusing permission to appeal on the papers, Elias LJ observed: 1. I have no doubt that the EAT was entitled to take the Meek point. The issue had been raised at the preliminary hearing by Mr Justice Underhill. As he pointed out, issues of perversity overlap with the Meek principle. It would have been unjust not to have allowed the point to be argued. 2. It may be that, when properly analysed, the error of the Tribunal here was not strictly a failure to give reasons, but rather a failure properly and fairly to deal with the employers case. In other words it may be that it is a fairness rather than the reasons challenged, but those two are inextricably intertwined. Be that as it may, I agree with the EAT that this decision fell short of the standard that is required. The employers must have come away

3 thinking that their arguments had not been fairly addressed. I do not say the conclusions were perverse, but the case for the employers was never properly identified and various important documents were not ever referred to. 5. In my judgment, the first contention made on behalf of the appellant that the EAT should not have considered the Meek point at all, because it had not been pleaded in the respondent s grounds of appeal to the EAT, which essentially alleged a perversity challenge, is hopeless. It is hopeless for this reason, that when deciding that the appeal could proceed to a hearing before the EAT, the President of the EAT, Underhill J, said this: As regards liability, this is essentially a perversity appeal though incorporating no evidence submissions on some particular points. The Notice of Appeal does not explicitly invoke Meek or rule 30 but on analysis, as is generally the case, the particular points made may shade into an alternative allegation of inadequate reasons: in other words, the Appellant can be taken to be saying even if this is not an impossible finding on the evidence it is sufficiently surprising in the light of the evidence as a whole and/or our submissions to require much more explanation than was given. We are prepared to read the Notice of Appeal as incorporating an argument along those lines. Perversity/Meek appeals of this kind always face an uphill struggle, but there are sufficient points in the Reasons, particularly when read with the contemporary documents which we have seen, where we have found Tribunal s findings surprising and/or rather under-explained for us to conclude that the appeal does deserve a full hearing. It is plain, therefore, that whatever the precise terminology used in the grounds of appeal, the appellant was put on notice that the Tribunal would be prepared to read the Notice of Appeal as incorporating a Meek argument. 6. When the matter came to a full hearing, paragraph 6 of the EAT s judgment, given by Slade J, said that the respondents advocate was asked to first address the EAT on the Meek point before addressing the perversity ground of appeal, and the appeal from the judgment on remedy. The EAT then asked for observations from Mr Young, who at that stage appeared on behalf of the appellant. After he had been able to take instructions, Mr Young addressed the EAT on the Meek point. Therefore, there can be no question of any unfairness or impropriety in the EAT considering the Meek point. Indeed, as Elias LJ observed, it would have been positively unjust for the EAT not to have allowed that point to be raised.

4 7. Moving on to the substance of the point, was the ET s judgment Meek-compliant, in that its reasoning told the respondent why it had lost, Mr Gorton QC on behalf of the appellant submits that neither Rule 30(6) of the Tribunal s Rules nor Meek require the Employment Tribunal in its judgments to rehearse that parties cases; there is no obligation on the Employment Tribunal to recite what each party is saying. I would readily accept that there is no obligation slavishly to rehearse each and every detail of a party s case, but in my judgment the EAT s conclusion that the ET s judgment was not Meek-compliant was plainly correct. 8. The form of the ET s judgment in this case is fairly described as bizarre. Paragraph 3 sets out in a number of subparagraphs the appellant s case. The respondent s case, however, is summarised in paragraph 4 in these words: Counsel for the respondent made a number of detailed written submissions as set out in the skeleton argument and as presented on the final day of the Hearing. We have considered those submissions with care but do not rehearse them here. That somewhat odd paraphrase of the position of the respondent would not necessarily have been a fatal flaw in the ET s judgment if at some subsequent stage the points that had been made by the respondent in response to the appellant s case had been identified, even if in summary form; but that simply did not happen. 9. Immediately after paragraph 4, that is to say having failed to even summarise the respondent s case, the ET immediately set out its findings of fact in paragraph 5 in 50 subparagraphs. Without going through the paragraphs in any great detail, it is fair to say that they read as though they are an account of the appellant s case. There is no, or no significant, indication as to what matters were in dispute; what the evidence, whether oral or documentary, was as to whatever matters there were which were in dispute; nor is there any indication as to why such disputes as there were, were resolved as set out in the findings of fact in the 50 points in paragraph 5. Having referred to the law in unexceptional terms in paragraphs 6 to 13, paragraph 14 of the ET s judgment contains the ET s determination of the issues, which appears to be based largely, although not entirely, on the findings of fact in paragraph 5; there are some additional findings. Again, those findings do not identify what matters were in dispute or what the respondent s position was on the matters which were in dispute. 10. It is clear that the claims were disputed by the respondent, but in what respects and on the basis of what evidence it is quite impossible to determine from this judgment, which reads as I say very much as an account of the appellant s case. Of course, the Employment Tribunal was perfectly entitled to accept the entirety of the appellant s case; but if it was to do so, its reasoning had to explain why it was resolving the disputed issues, whatever they were, in the appellant s favour.

5 11. I should emphasise that the flaw in the ET s judgment is a structural one. It is not simply a matter of detail, that it does not for example refer to the evidence of a particular witness, or that it does not refer to a particular document; it is that it fails to set out even on a summary basis what the respondent s contentions were and why those points being made on behalf of the respondent were not being accepted. In summary, as Elias LJ indicates, the case for the employers was never properly identified. As a result of that failing, it was simply never engaged with. 12. Lastly, as to the proposition that it was unnecessary to remit the matter for a further hearing, given that this tribunal, as Mr Gorton said, apparently conducted the hearing itself in a perfectly fair way, no complaint having been made as to unfairness in the manner in which the hearing was conducted. While it would be a perfectly proper response to some instances of inadequate reasoning to ask the Tribunal for a further explanation of the point where the reasoning was felt to be inadequate, the reasoning in this judgment was so deficient, in the sense that it simply failed to engage with the respondent s case at all, that in my judgment the only fair course was to remit the matter to another tribunal; so that the respondent s case, whatever it may have been, could be addressed. 13. For those reasons, this renewed application for permission to appeal is refused. Order: Application refused.