Court of Appeal discourages EAT from substituting decision after successful appeal

Thanks to Paul Smith of Broadway House Chambers for preparing this case summary When may the Employment Appeal Tribunal substitute its own decision for that of the employment tribunal, rather than remit? Only in limited circumstances, held the Court of Appeal in Burrell v Micheldever Tyre Services. 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 [2014] 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.