Korashi v Abertawe Bro Morgannwg University Local Health Board

Factual and Procedural Background

The Plaintiff, an obstetrician and gynaecologist, was employed by the Defendant (the Trust) or its predecessor from February 2002 until dismissal in March 2008. Between 2003 and 2008, the Plaintiff’s relationship with the Defendant was fractious, leading to multiple Employment Tribunal (ET) proceedings. The present case concerns the third through sixth sets of proceedings commenced between July 2006 and August 2007, raising issues of race discrimination and detriment by reason of protected disclosures (whistleblowing). There is also a pending unfair dismissal claim. An eight-week ET hearing concluded in December 2008, with judgment dismissing the claims promulgated in July 2009. The Plaintiff appealed to the Employment Appeal Tribunal (EAT), initially preparing his own grounds of appeal, later revised and now represented by Attorney Korn. The appeal includes challenges based on "reasons" and "perversity."

Legal Issues Presented

1. Whether the Employment Appeal Tribunal erred in its case management decision to apply the Burns/Barke procedure to seek amplification or augmentation of the Employment Tribunal’s reasons.
2. Whether the scope and number of questions posed to the Employment Tribunal under the Burns/Barke procedure were appropriate, especially in light of the sensitive issues of whistleblowing and race discrimination.
3. Whether the passage of time between the original hearing and the remission for further reasons undermined the appropriateness of the Burns/Barke procedure in this case.
4. Whether the Employment Tribunal’s original judgment was "fundamentally flawed," rendering the Burns/Barke procedure inappropriate.

Arguments of the Parties

Appellant's Arguments

• There is no precedent for remission to seek answers to as many and as extensive questions as in this case.
• Given the issues of whistleblowing and race discrimination, particular care is required to avoid risks of tailoring or reconstructing reasons.
• The Employment Tribunal’s judgment is fundamentally flawed, making the Burns/Barke procedure unsuitable.
• The delay between the original hearing and the remission was excessive, undermining the procedure’s appropriateness.
• Many of the questions go beyond mere amplification of reasons and seek new findings of fact, which should not be permitted on such a scale.
• Illustratively, while one question on race discrimination might be suitable for the procedure, the extensive detailed questions on whistleblowing are excessive and untimely.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by acknowledging the established practice of remission for amplification of reasons in Employment Appeal Tribunal appeals, particularly under the Burns/Barke procedure. It noted the inherent risks of such remission, including the possibility of reconstructed or tailored reasoning, and the need for careful judicial discretion.

The Court observed that the EAT had acted with sensitivity to these risks, applying the procedure in a measured, case-managed way. Although the number and scope of the questions posed were unusually extensive, this was contextualized by the complexity and length of the original hearing and the multifaceted nature of the claims.

The Court accepted that the passage of time between the original hearing and the remission was a concern but found that this risk had not materialized, especially since the Court had the benefit of the Employment Tribunal’s detailed answers to the questions. The Court emphasized that any substantive criticisms of the Tribunal’s judgment or the answers could still be pursued at the substantive appeal hearing, where the full evidential record would be available.

Ultimately, the Court concluded that the EAT’s decision to employ the Burns/Barke procedure was within its discretionary powers and was not legally erroneous. The procedure was not a mere expedient to avoid retrial but a proportionate case management decision aligned with the overriding objective of justice.

Holding and Implications

The Court DISMISSED THE APPEAL, affirming the Employment Appeal Tribunal’s use of the Burns/Barke procedure to seek further reasons from the Employment Tribunal.

The direct effect is that the case management decision to remit extensive questions for amplification or augmentation of reasons stands, allowing the substantive appeal to proceed with the benefit of those clarifications. The Court did not establish any new legal precedent but confirmed the permissibility of broad use of the Burns/Barke procedure within the bounds of judicial discretion and proportionality.