Zaki v Marston’s Plc (Practice and Procedure : Appellate jurisdiction/Reasons/Burns-Barke) [2014] UKEAT 0513_13_2306
EAT
Zaki v Marston’s Plc (Practice and Procedure : Appellate jurisdiction/Reasons/Burns-Barke)
[2014] UKEAT 0513_13_2306 · 2014-06-23
[46]“Mr Marsh [Counsel for the Claimant, Mr Small] spoke of his experience that ETs often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stages of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal case for the ET to keep its findings on that particular issue separate from its findings on disputed facts that are only relevant to other issues, such as contributory fault... Of course, some facts will be relevant to more than one issue, but the legal elements of the different issues, the role of the ET and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication. ” 10. It is common ground before me that different questions arise when considering (a) fairness of a dismissal (b) the Polkey question and (c) contributory conduct. 11. In this case the Tribunal made clear and unimpeachable findings as to the reasonableness of the employer’s decision to dismiss and the necessarily speculative Polkey question: what were the chances of the Claimant retaining his employment had a fair procedure been followed by the Respondent? 12. The difficulty is that nowhere, in my judgment, did the Tribunal spell out their factual findings as to the conduct of the Claimant on 26 and 27 February; findings which were material to the separate factual contribution question. 13. True it is, as Mr Pilgerstorfer submits, that the Tribunal found that the Respondent was entitled reasonably to reject the Claimant’s account as unlikely, faced with the conflicting account given to them by Mr McGrath in writing; see paragraphs 129 and 132. However, the Tribunal do not spell out their own findings for the purposes of the contribution issue. That, in my judgment, represents a lacuna in their reasoning process. Wrongful dismissal – Ground 10 14. Here, no reasons are given for the conclusion that the wrongful dismissal claim failed and no self-direction is given as to the need for a factual finding as to whether the Claimant committed the misconduct alleged and, if so, whether that amounted to gross misconduct entitling the Respondent to summarily terminate the employment at common law. The answer is indirectly given at paragraphs 136 and 137, but in the context of the approach of a reasonable employer, not as a matter of fact-finding by the Tribunal. Disposal 15. I agree with Mr Kohanzad that the Tribunal fell into error by failing to make specific findings of fact, on the balance of probabilities, as to the misconduct alleged against the Claimant, both in relation to contributory fault and wrongful dismissal. Further, no explanation is given, however shortly, as to how the figure of 75% contribution was reached. 16. Mr Pilgerstorfer suggests that these omissions can be remedied by a Burns-Barke reference. I disagree. Having reached the point of a Full Hearing in this appeal, it would not be proportionate to adjourn this hearing for Employment Judge Hyde to answer questions which would be, in any event, posed on remission, a course to which I shall return. Further, no opportunity would then be given to the Claimant, as well as the Respondent, to make submissions on the answers to be given by the Tribunal: an opportunity which will arise on remission. That is without taking account of the cautionary note struck by Dyson LJ in Barke v Seetec Business Technology Centre Ltd [2005] EWCA Civ 578 itself, as further developed by Mummery LJ in Woodhouse School v Webster [2009] IRLR 568 (the report immediately following that of London Ambulance Service v Small ). 17. As to remission, I have been taken to the two recent Court of Appeal authorities on when the EAT should confirm or reverse an ET decision, having found an error of law, and when it should remit to the same or a different ET (see Jafri v Lincoln College [2014] IRLR 544 and Burrell v Micheldever Tyre Services Ltd [2014] EWCA Civ 716 ). 18. Having considered that latest guidance I am satisfied that the proper and proportionate course is to allow the Claimant’s appeal and remit the issues of contribution and wrongful dismissal only for reconsideration by the same Tribunal chaired by Employment Judge Hyde at the outstanding Remedy Hearing. That is the extent of the remittal; no further evidence may be adduced on those issues; see Burrell , paragraph 20, per Maurice Kay LJ. In particular, it will not be open to the Respondent to call Mr McGrath to give evidence on those issues. They had the chance to do so at the original hearing and did not take that opportunity. The matter will proceed on the basis of submissions only. The parties are directed to exchange and lodge with the ET Skeleton Arguments not less than eight days before the remitted hearing before Judge Hyde’s Tribunal.