Burns v Royal Mail Group Plc & Anor

Factual and Procedural Background

This opinion concerns an adjourned hearing of an appeal in a case between the Appellant and the Respondent, her former employer. The Employment Tribunal originally heard the matter over three days in May 2002 and issued a decision in June 2002 which struck out the Appellant's complaints in a second Originating Application after she had abandoned the first. The Employment Appeal Tribunal (EAT) initially dismissed most of the Appellant's appeal but remitted a specific paragraph of the Employment Tribunal's decision back to that tribunal for further consideration without calling further oral evidence. Both parties were allowed to submit further written submissions. The Employment Tribunal reconvened and confirmed its original findings. The Appellant then applied for the adjourned appeal balance to be restored for an oral hearing before the EAT, which was granted. This hearing is the subject of the current judgment.

Legal Issues Presented

1. Whether remission of part of the appeal back to the Employment Tribunal under section 35 of the Employment Tribunals Act 1996 was permissible and appropriate.
2. Whether the Employment Tribunal’s reaffirmation of its earlier decision, particularly paragraph 68, was legally challengeable.
3. Whether the Employment Tribunal properly considered the question of a proportionate response in striking out the Appellant’s claim.
4. Whether the Employment Tribunal’s decision was perverse and thus liable to be overturned on appeal.

Arguments of the Parties

Appellant's Arguments

• The Appellant challenged the remission order made by the EAT on the basis that remission under section 35 was not permissible or appropriate, relying on the case of Tran -v- Greenwich Vietnam Community Council.
• The Appellant contended that the Employment Tribunal’s reaffirmation of its findings went beyond its original findings, particularly in paragraph 3 of the decision sent after remission.
• The Appellant argued the Employment Tribunal failed to properly consider whether striking out the claim was a proportionate response.
• Finally, the Appellant asserted that the Employment Tribunal’s decision was perverse and should be overturned.

Respondent's Arguments

• The Respondent, through counsel, supported the remission procedure and the Employment Tribunal’s reaffirmation of its findings, emphasizing that the Tribunal had not called fresh evidence but merely restated earlier findings.
• The Respondent argued that the Employment Tribunal properly considered the balancing exercise, which encompassed the question of proportionate response.
• The Respondent maintained that the Tribunal’s decision was reasonable and not perverse, especially given the absence of corroborative evidence and the Tribunal’s findings that the Appellant had deliberately misled it.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing the Appellant’s attempt to challenge the remission order made nearly a year earlier, finding such challenge to be out of time and inappropriate given the Appellant’s prior cooperation. The court endorsed the remission procedure under section 35 of the Employment Tribunals Act 1996 as consistent with natural justice and supported by the Court of Appeal’s decision in English -v- Emery Reimbold, which emphasises the importance of adequate reasons for decisions to ensure fairness and public confidence.

The court acknowledged the potential dangers of a tribunal having a "second bite at the cherry" but found that the remission was properly limited to reconsideration on paper without fresh oral evidence, with the Employment Tribunal retaining the power to review its own decision if appropriate. This approach was viewed as efficient and cost-effective, preventing unnecessary full rehearings.

Regarding the Employment Tribunal’s reaffirmation of its findings, the court held that the Tribunal was merely reciting and summarising its original findings of fact, not making fresh findings, which was appropriate given no new evidence was presented. The Tribunal’s conclusion that the Appellant had deliberately misled it and was not credible was supported by the original hearing and evidence.

The court rejected the Appellant’s argument that the Tribunal failed to consider a proportionate response, noting that the Tribunal expressly engaged in a balancing exercise, which is synonymous with considering proportionality. The Tribunal’s decision to strike out the claim was therefore properly reasoned.

On the issue of perversity, the court confirmed that the threshold for overturning an Employment Tribunal’s decision on appeal is very high, especially where findings hinge on credibility and the absence of corroborative evidence. The court found no basis to conclude the Tribunal’s decision was perverse.

Holding and Implications

The court DISMISSED the Appellant’s appeal in its entirety.

The direct effect of this decision is that the Employment Tribunal’s decision striking out the Appellant’s claim stands. The court reaffirmed the appropriateness of remission under section 35 as a procedural tool to manage appeals efficiently without unnecessary rehearings. No new precedent was established beyond the confirmation of existing principles regarding reasons, remission, and appellate intervention standards in employment tribunal appeals.