Jafri v Lincoln College

Factual and Procedural Background

The appellant, a teacher and learning specialist, was employed at an open prison in Derbyshire, initially by Derbyshire Education Authority, then Manchester College, and finally Lincoln College after a transfer of responsibility in 2009. The appellant held the position of Deputy Learning and Skills Manager. A grievance was raised by a colleague alleging physical and verbal abuse by the appellant and two others, leading to their exclusion from the prison by the prison governor pending investigation. The college conducted an investigation resulting in an unfavourable report against the appellant. Although a disciplinary hearing was scheduled, it was postponed at the appellant's request. The appellant subsequently raised grievances asserting the allegations were false and that the college impeded his defence.

The colleague who made the allegations left employment and did not return, leading a vice-principal to uphold the appellant's grievance that the allegations were false. Despite this, the prison governor maintained the appellant's exclusion from the prison. No formal disciplinary process was pursued against the appellant; instead, an informal disciplinary mechanism resulted in an oral warning related to other behavioural issues. Attempts to redeploy the appellant elsewhere failed, and he was dismissed due to the prison governor's refusal to allow his return and the inability to find alternative employment.

The Employment Tribunal (ET) dismissed the appellant's claims of unfair dismissal and detriment related to protective disclosures, finding the dismissal justified for a substantial reason related to the prison governor's exclusion decision and the college's efforts to mitigate injustice. The Employment Appeal Tribunal (EAT) dismissed the appellant's appeal against the ET decision, finding no error that would affect the outcome. The appellant appealed further, focusing on whether the EAT applied the correct test for remittal and whether a new point regarding the disciplinary process should be allowed.

Legal Issues Presented

1. Whether the appellant should be permitted to rely on a new point not raised in the Employment Tribunal proceedings concerning the failure to pursue the disciplinary process to a conclusion.
2. Whether the Employment Appeal Tribunal applied the correct legal test in deciding not to remit the case for further Employment Tribunal consideration after identifying errors of law in the original decision.
3. Whether the Employment Tribunal erred in making inappropriate factual findings and whether such errors justified remittal.

Arguments of the Parties

Appellant's Arguments

• The Employment Appeal Tribunal wrongly decided the case for itself instead of remitting it for further hearing after identifying errors of law.
• The EAT applied an incorrect test for remittal, focusing on whether the original conclusion was "plainly and unarguably right" despite errors, rather than whether remittal was appropriate.
• The appellant contended that the disciplinary process should have been pursued to a formal conclusion, which could have led to exoneration and reinstatement.
• The appellant argued that this issue was not new and had been raised before the Employment Tribunal and Employment Appeal Tribunal.

Respondent's Arguments

• The new point regarding pursuing disciplinary proceedings was not raised before the Employment Tribunal and is therefore a new point which should not be allowed at this stage.
• The Employment Tribunal made all reasonable efforts to prevent injustice to the appellant, including attempts to persuade the prison governor to allow the appellant's return and to find alternative employment.
• The appellant's criticisms related mainly to the investigative process rather than a distinct case that disciplinary proceedings should have been completed.
• Allowing the new point would result in substantial relitigation, which is inappropriate.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dobie v Burns [1984] IRLR 329	Test for remittal by the EAT when a legal misdirection is found: whether the original decision is plainly and unarguably right despite the error.	The court discussed and refined the application of this test, emphasizing the EAT's limited role and the need for remittal unless the error is immaterial or the outcome is clear.
Hellyer Bros. Ltd v McLeod [1987] ICR 526	Qualification of the Dobie test allowing substitution of conclusions if facts are clear and no further investigation is required.	The court acknowledged this qualification and applied it to assess whether remittal was necessary.
MoD v Cartner [2011] EWCA Civ 1516	Endorsement of the approach allowing the EAT to substitute conclusions when appropriate.	The court cited this authority to support the analysis of the EAT's role.
Willow Oak Developments v Silverwood [2006] IRLR 607	The EAT cannot add to ET findings not contained in the original decision; remittal required if facts need amplification.	Applied to emphasize the limits of EAT fact-finding and the necessity of remittal if further fact-finding is required.
O'Kelly v Trust House Forte [1984] QB 90	Principles on the relief to be granted on appeals on law only; remittal required if the ET's decision is an open question.	Used to support the court's approach to remittal and correction of legal errors.
Buckland v Bournemouth University [2010] 4 AER 186	Remittal should be a last resort; EAT can decide points if no further evidence is needed.	Referenced in discussion about avoiding unnecessary remittal and the EAT's capacity to decide cases.
Haq v Audit Commission [2013] EWCA Civ 1621	Affirmed that the EAT works on facts found by the ET and should avoid remittal unless necessary.	Supported the view that remittal is unnecessary where only one outcome is possible on the facts.
Sud v Ealing LBC [2013] WLR(D) 320	Additional findings by the EAT would not affect the outcome; remittal unnecessary.	Referenced to illustrate circumstances where remittal can be avoided.
Devon & Somerset Fire and Rescue Service v Tilke [2010] EWCA Civ 1402	Where facts are known, the EAT can decide the issue without remittal.	Used to support the argument that remittal is not always required.
Fuller v London Borough of Brent [2011] IRLR 414	Remittal not inevitable; fresh hearing may or may not result in fair dismissal finding.	Used to illustrate the discretionary nature of remittal.
Henderson v Connect Ltd [2010] IRLR 466	Consideration of injustice to an employee dismissed due to a third party's act.	Referenced in the context of assessing injustice to the appellant.
Langston v Cranfield University [1998] IRLR 172	Requirement that tribunals consider relevant points if obviously connected to the case.	Mentioned in relation to whether the disciplinary process issue was an obvious point.
Robinson [1998] QB 929	Immigration appeal tribunals must consider obvious points even if not raised.	Referenced by analogy concerning "obvious" points in tribunal proceedings.
Bennett v London Borough of Southwark [2002] EWCA Civ 223	The appeal tribunal cannot substitute its own decision for that of the first instance tribunal on matters of judgment.	Applied to emphasize the limits of the EAT's role in fact-finding and decision-making.

Court's Reasoning and Analysis

The court examined the appellant's contention that the Employment Appeal Tribunal (EAT) erred by deciding the case itself rather than remitting it for further Employment Tribunal (ET) consideration after identifying errors of law. The court reviewed the established legal principles governing remittal, notably the "plainly and unarguably right" test from Dobie v Burns and its qualifications in subsequent authorities.

The court emphasized the distinct roles of the ET as the fact-finder ("industrial jury") and the EAT as the legal supervisor. It held that if the ET's error of law could have affected the outcome and the correct result was not clear from the existing facts, the case must be remitted to the ET. The EAT must not make factual assessments or substitute its own judgment on the merits unless the outcome is inevitable from undisputed facts.

Applying this framework, the court found that the ET had taken full account of the injustice to the appellant and had made reasonable efforts to mitigate it, including attempts to persuade the prison governor to allow the appellant's return and efforts to redeploy him. The appellant's criticisms of the ET's factual findings did not undermine this conclusion.

The court identified a potentially significant issue not raised before the ET: whether the disciplinary process concerning the allegations should have been pursued to a formal conclusion. This issue was not considered by the ET, and no findings were made on its practicability or likelihood of success. Because this point was not previously raised, it constituted a new point, which the court found should not be allowed absent exceptional circumstances.

The court rejected the appellant's argument that this new point had been raised before the ET, concluding that the ET was not invited to consider whether the disciplinary process should have been pursued formally. The court held that allowing this new point would amount to substantial relitigation, which is impermissible.

Finally, the court addressed the broader question of when remittal is appropriate. It acknowledged recent judicial commentary cautioning against unnecessary remittal but reaffirmed the binding authority that the EAT must remit cases where more than one outcome is reasonably possible after correcting a legal error. The court noted that remittal can be avoided if the parties agree on the outcome, but no such agreement existed here.

Holding and Implications

The court DISMISSED THE APPEAL.

The appellant was not permitted to rely on the new point concerning the failure to pursue the disciplinary process to a formal conclusion, as it was not raised before the Employment Tribunal and did not constitute an error of law justifying its admission at this stage. The Employment Appeal Tribunal's approach to remittal was upheld as legally correct, reaffirming the principle that the EAT must remit cases for further fact-finding unless the outcome is unavoidable on the established facts.

This decision directly resolves the appellant's claims without setting new precedent, reinforcing established procedural rules on remittal and the handling of new points in employment appeals.