Employment Cases Update

Korashi v Abertawe Bro Morgannwg University Local Health Board [2011] EWCA Civ 187

Date published: 02/03/2011

Appeal against a ruling by the EAT that the Burns/Barke procedure should be used in order to clarify parts of the ET judgment. Appeal dismissed.

The appellant had brought proceedings, relating to a protected act and race discrimination, against the respondent in the ET. The ET judgment was lengthy, and according to the appellant it was fundamentally flawed and the ET had failed to explain their reasons adequately. The EAT ordered that the Burns/Barke procedure should be invoked and ordered both parties to prepare and possibly agree a list of questions to be submitted to the Employment Judge. In due course an approved list of questions was sent to the ET and the ET provided its answers. The appellant objected to the use of the Burns/Barke procedure for several reasons: 1) there was no precedent for a remission to seek answers to questions as numerous and extensive as in this case; 2) there are risks of tailoring and reconstruction in particular in cases of whistleblowing and race discrimination; 3) the judgment was fundamentally flawed and therefore Burns/Barke was inappropriate; 4) too much time had passed between the conclusion of the evidence and the remission and 5) many of the questions went beyond the amplification or augmentation of reasons.

The Court of Appeal acknowledged that the number and scope of questions posed in this case exceeded anything within the experience of counsel before them, and said that the passage of time was an uncomfortable feature. However, having the benefit of the answers before them, the risk caused by the passage of time seemed not to have eventuated. The court also agreed with the respondent that the EAT would be in a far better position to see whether the questions posed before the ET and the answers given pointed to unreliable recollection, reconstructed reasoning or tailored fact-finding. They concluded that the use of the Burns/Barke procedure was a case management decision taken in a balanced way with an eye on proportionality and the overriding objective of dealing with cases justly.

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Neutral Citation Number: [2011] EWCA Civ 187

Case No: A2/2010/2440

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(THREE JUDGES)

APPEAL REF NO: UKEAT042409JO

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/03/2011

Before :

LORD JUSTICE MAURICE KAY (Vice President of the Court of Appeal, Civil Division

LORD JUSTICE RIMER

and

LORD JUSTICE ETHERTON

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Between :

KORASHI (Appellant)

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ABERTAWE BRO MORGANNWG UNIVERSITY LOCAL HEALTH BOARD (Respondent)

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Mr Anthony Korn (instructed by Irwin Mitchell LLP) for the Appellant

Mr Peter Wallington QC and Mr Edward Capewell (instructed by Morgan Cole LLP) for the Respondent

Hearing date : 16 February 2011

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Judgment

Lord Justice Maurice Kay :

1. Dr Korashi is an obstetrician and gynaecologist. He was employed by the respondent (the Trust) or its predecessor from 1 February 2002 until he was dismissed in March 2008. Between 2003 and 2008, the relationship between Dr Korashi and the Trust was fractious. He has commenced several sets of proceedings in the Employment Tribunal (ET). The first was dismissed. The second was partially successful. We are concerned with the third, fourth, fifth and sixth, which were commenced on various dates between July 2006 and August 2007 before his dismissal. It raised issues of race discrimination and detriment by reason of having made protected disclosures ("whistleblowing"). There is also a pending unfair dismissal claim. So far as the present proceedings are concerned, there was an eight-week hearing in the ET which ended on 15 December 2008, with further submissions in January 2009. The ET promulgated its judgment, dismissing the claims, on 17 July 2009. Dr Korashi has appealed to the Employment Appeal Tribunal (EAT). Initially, he prepared his own grounds of appeal and these were subsequently revised. However, at various stages in the EAT and now in this Court, Dr Korashi has been represented by Mr Anthony Korn, who had represented him in the ET. The grounds of appeal include "reasons" and "perversity" challenges.

2. The ET judgment is long (55 pages). It was described by the EAT as being "in a slightly unusual form": UKEAT/0424/09/JOJ, at paragraph 8. The case for Dr Korashi is that it is fundamentally flawed. Appeals to the EAT alleging an insufficiency or deficiency of reasons are by no means uncommon. The same is true throughout the tribunal system and, to a lesser extent, in the courts. The general principles applied in the ordinary courts are set out in English v Emery, Reimbold & Strick Ltd [2002] 1 WLR 2409. They embrace the possibility that the Court of Appeal may adjourn an application for permission to appeal and remit 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" (per Lord Phillips of Worth Matravers, at paragraph 25). Such a procedure owes more to pragmatism than to purity. As Lord Phillips said (at paragraph 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."

And, of course, if an original decision is overturned for insufficiency of reasons, there may be no alternative to a lengthy and expensive retrial.

3. The device of remission for an amplification or augmentation of reasons has become particularly developed in relation to appeals to the EAT. It has become known as the Burns/Barke procedure, following Burns v Royal Mail Group [2004] ICR 1103 and Barke v SEETEC Business Technology Centre [2005] ICR 1373. It is mentioned in the EAT Practice Direction 2008, which refers to

"an invitation [to the ET] from the judge or Registrar [of the EAT] to clarify, supplement or give its written reasons."

I shall have to refer to some of the authorities later.

4. In the present case, by an amended order sealed on 29 July 2010, the EAT (HHJ Ansell, Mr B Beynon and Mr T Stanworth) ordered the parties "to prepare and, where possible agree … a list of questions to be submitted to the Employment Judge under the Burns/Barke procedure". The order envisaged a subsequent directions hearing at which the EAT would resolve any remaining issues as to the contents of the proposed Burns/Barke letter to the ET. That directions hearing took place before the EAT, constituted as before, on 20 September 2010. It made provision for HHJ Ansell to approve a list of questions in respect of which the ET would be invited to provide answers "by reference to their notes of evidence, witness statements and documents before the Tribunal at the hearing and without the need to adduce or allow the adduction of any further oral evidence".

5. In due course, an approved list of questions was sent to the ET and the ET, under the signature of the Employment Judge, provided its answers. Two observations are appropriate this stage: (1) Dr Korashi consistently opposed the use of the Burns/Barke procedure, contending that it was inappropriate in this case, and his and Mr Korn's input to the procedure have been without prejudice to his right to appeal the order of the EAT; and (2) although the answers were signed off by the Employment Judge alone and Dr Korashi was originally minded to object to them on the basis that they do not say in terms that they were provided on behalf of all three members of the ET, Mr Korn has effectively and wisely abandoned that point.

6. The questions and the answers are of unusual length and scope. Indeed, this is part of Dr Korashi's objection to them. Rather than set them out here, I append them to this judgment. This appeal, for which Elias LJ granted permission, challenges the use of the Burns/Barke procedure in this case.

The authorities

7. Since English, the practice of remission for the amplification or augmentation of reasons has undergone development more in relation to EAT appeals than in any other jurisdiction. Some guiding principles have emerged.

8. In Burns, Burton J (President of the EAT) said (at paragraph 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 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."

9. There the remission related to one paragraph in the judgment of ET. Burton J referred to the case as "simple" and to the issue as "a comparatively short one" (paragraph 27).

10. Barke is a decision of this Court. The judgment of the Court (Brooke, Buxton and Dyson LJJ) was given by Dyson LJ. In paragraph 1 he referred to the practice applying to cases

"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."

and to inviting the employment tribunal

"to clarify, supplement or give its written reasons before proceeding to a final determination of the appeal."

11. He added (at paragraph 42):

"The overriding objective would be frustrated by an unduly restrictive application of the Burns procedure and the jurisdiction explained in English … 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."

12. He then referred to the dangers inherent in the procedure, adding (at paragraph 46):

"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 … 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."

The request to the ET which was approved by this Court sought further reasons in relation to a number of matters raised in eight of the grounds of appeal.

13. In Woodhouse School v Webster [2009] ICR 818 Mummery LJ emphasised the necessity for the EAT "to identify correctly the point on which the employment tribunal's reasoning may be inadequate" (paragraph 28).

The complaint about the use of the procedure in this case

14. The main criticisms of the use of the Burns/Burke procedure in the present case, as advanced by Mr Korn, can be summarised as follows. (1) There is no precedent for a remission to seek answers to questions as numerous and extensive as in this case. (2) Where the issues are whistleblowing and race discrimination particular care is called for and the risks of tailoring and reconstruction should be avoided or at least not facilitated. (3) This is a "fundamentally flawed" ET judgment and therefore inappropriate for the Burns/Barke procedures. (4) The passage of time between the conclusion of the evidence or the promulgation of the judgment (which was itself the subject of substantial delay) and the remission was too long. (5) Many of the questions posed go beyond the amplification or augmentation of reasons and seek findings of fact absent from the judgment and, whilst an element of supplementary fact-finding is permissible on the authorities, it should not be permitted on this scale. By way of illustration of these points, Mr Korn submits that Question 10, dealing with race discrimination and/or victimisation by reference to a single, discrete incident, might, by itself, be appropriate for the Burns/Barke procedure but page after page of detailed questions relating to the whistleblowing aspect of the case is simply too much and too late.

Discussion

15. The first thing to say about resort to the Burns/Barke procedure in this case is that it was explained by the EAT in a careful judgment which demonstrated sensitivity to the inherent dangers and awareness of the guidance set out in the authorities. Mr Korn does not suggest otherwise. Also, it is essential to keep in mind the nature of this kind of interlocutory appeal. As Dyson LJ said in Barke (at paragraph 49):

"… 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 appeal tribunal to make."

Nevertheless, there will be cases where the EAT will have exceeded the ambit of discretion or will have failed to have regard to a relevant principle – Woodhouse School (paragraph 28) is an example.

16. The number and scope of the questions posed in this case exceed anything within the knowledge of experienced counsel before us and anything previously encountered by the members of the Court (two of whom have substantial EAT experience). I also accept that the passage of time is a discomforting feature. Indeed, if I had been looking at this case in the immediate aftermath of the EAT's order, I would have been seriously concerned as to whether, after this amount of time, too great a burden and expectation were being imposed on the ET by such an extensive request. However, we now have not only the questions but also the answers. It is not for us to expose them to detailed analysis but we are entitled to conclude, as I do, that the risk caused by the passage of time seems not to have eventuated.

17. I have emphasised the word "seems", because it illustrates the confines of our task. The primary submission advanced by Mr Peter Wallington QC on behalf of the Trust is that most, if not all, of the complaints advanced on behalf of Dr Korashi can still be advanced at the three-day hearing of the substantive appeal. There, the EAT will have the full picture including access to the 3000 or so pages of documents produced before the ET and will be in a far better position to see whether the questions posed and the answers given point to unreliable recollection, reconstructed reasoning or tailored fact-finding. In my judgment, this is an important submission and I accept it. I am bound to say that I would have found it more difficult to accept it if we had not had sight of the ET's answers. We have had that opportunity because Elias LJ and later Pill LJ refused to stay the EAT's order. The subsequent development of this appeal disposes me to the view that this Court will usually be in a better position to deal with borderline cases if it has the answers before it.

18. In my judgment, this case is close to the borderline but I am satisfied that it falls on the permissible side of it. I do not think it can be said that the use of the Burns/Barke procedure was a mere expedient designed to avoid the risk of a long retrial at all costs. It was a case management decision taken in a balanced way with an eye on proportionality and the overriding objective of dealing with cases justly. The EAT concluded that, although the judgment of the ET was "in an unusual form", it did not fall into the "fundamentally flawed" category (judged at this stage) and it explained why. The mere number and extent of the questions posed, even if unique, have to be seen in the context of a long and multi-faceted hearing. The questions do not range across the piece. They relate to particular facets.

19. Nothing I have said will be or should be taken to be dispositive of the substantive appeal. Mr Korn will be able to pursue his critique of the judgment of the ET and of the answers to the questions posed by the EAT in search of legal error. All we have to decide is whether there was a legal error in the EAT's case management decision to adopt the Burns/Barke procedure and to invite the ET to answer the questions as formulated. In my judgment there was not. I would dismiss the appeal.

Lord Justice Rimer:

20. I agree.

Lord Justice Etherton:

21. I also agree.