In this case, the employee succeeded in a claim of victimisation at
first instance, but in the EAT the employer's appeal was upheld. The
EAT, however, refused to remit the case back to the employment tribunal
and instead determined that the victimisation claim failed. The employee
appealed on the basis that the EAT ought to have remitted the matter.
The Court of Appeal allowed the appeal for the reason that the
employment tribinal's conclusions remained open to interpretation, but
it reaffirmed the legal position concerning remittals, placing heavy
reliance on the very recent decision of the same court in Jafri v Lincoln College  EWCA Civ 449.
In short, the EAT must not make its own assessment of a case on its
merits: its role is restricted to monitoring the lawfulness of an
employment tribunal's decisions. The EAT must remit a case unless (a)
the original employment tribunal's error would not have affected the
overall result, or (b) even if the error would have affected the result,
the facts found by the original employment tribunal enable the EAT to
determine what the result should have been.
Maurice Kay LJ, giving the judgment of the court, stated (obiter) that
he would have been minded to relax the law in this area in light of the
fact that many employment tribunals are composed of judges sitting
alone, and that the EAT has (since 2004) been subject to an overriding
objective to "deal with cases justly". However, he felt bound by the
decision in Jafri which reinforced the more rigid, conventional approach.
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Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.
Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.