REASONING OF THE ET
In Meek v City of Birmingham District Council [1987] IRLR 250, the Court of Appeal made clear that, while the decision of an ET is not required to be “an elaborate formalistic product of refined legal draftsmanship”, it must:
“contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises …”
APPROACH OF THE EAT
The EAT’s jurisdiction to determine appeals from ET decisions is limited to questions of law (section 21 Employment Tribunals Act 1996). Due respect is to be given to the findings of fact made by the first instance tribunal, to its evaluation of those facts and the inferences it has drawn from them (see per Kitchin LJ at paragraphs 114-117 FAGE UK Limited and anor v Chobani UK Limited and anor [2014] EWCA Civ 5).
Important guidance is provided in DPP Law Ltd v Greenberg [2021] EWCA Civ 672:
“58. … where a tribunal has correctly stated the legal principles to be applied, an appellate tribunal or court should … be slow to conclude that it has not applied those principles, and should generally only do so where it is clear from the language used that a different principle has been applied to the facts found. Tribunals sometimes make errors, having stated the principles correctly but slipping up in their application, as the case law demonstrates; but if the correct principles were in the tribunal’s mind, as demonstrated by their being identified in the express terms of the decision, the tribunal can be expected to have been seeking faithfully to apply them, and to have done so unless the contrary is clear from the language of its decision. …”
The decision of an employment tribunal must be read fairly and as a whole, without focusing merely on individual phrases or passages in isolation, and without being hypercritical. A tribunal is not required to identify all the evidence relied on in reaching its conclusions of fact. Where a tribunal has correctly stated the legal principles to be applied, an appellate tribunal should be slow to conclude that it has not applied those principles.
That said, the EAT’s role is not to strive to uphold a decision where the reasoning reveals a fundamental error of approach; as Sedley LJ observed in Anya v University of Oxford [2001] ICR 847 CA:
“26. … The courts have repeatedly told appellants that it is not acceptable to comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for oversetting the decision. No more is it acceptable to comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons. Just as the courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so they should not uphold a decision which has failed in this basic task, whatever its other virtues.”
Cavanagh J provides a helpful summary at paragraph 47(7) Frame v Governing Body of Llangiwg Primary School UKEAT/320/19 on the duty to give reasons:
(1) The duty to give reasons is a duty to give sufficient reasons so that the parties can understand why they had won or lost and so that the Appellate Tribunal/Court can understand why the Judge had reached the decision which s/he had reached;
(2) The scope of the obligation to give reasons depends on the nature of the case;
(3) There is no duty on a Judge, in giving his or her reasons, to deal with every argument presented by counsel in support of his case:
(4) The Judge must identify and record those matters which were critical to his decision. It is not possible to provide a template for this process. It need not involve a lengthy judgment;
(5) The judgment must have a coherent structure. The judgment must explain how the Judge got from his or her findings of fact to his or her conclusions;
(6) When giving reasons a Judge will often need to refer to a piece of evidence or to a submission which s/he has accepted or rejected. Provided that the reference is clear, it may be unnecessary to detail, or even summarise, the evidence or submission in question; and
(7) It is not acceptable to use a fine-tooth comb to comb through a set of reasons for hints of error or fragments of mistake, and try to assemble them into a case for oversetting the decision. Nor is it appropriate to use a similar process to try to save a patently deficient decision.
PERVERSITY
- Where an appeal is pursued on the basis that an ET decision was perverse, that must meet a high threshold – see para 93 by Mummery LJ in Yeboah v Crofton [2002] IRLR 634 CA:
“Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision that no reasonable tribunal, on a proper application of the evidence and the law, would have reached. Even in cases where the appeal tribunal has ‘grave doubts’ about the decision of the employment tribunal, it must proceed with ‘great care’, British Telecommunications PLC v Sheridan [1990] IRLR 27 at para 34.”
PROCEDURAL IRREGULARITY
Where the appeal alleges procedural irregularity on the part of the ET, full details of each complaint made must be included within the relevant grounds of challenge; paragraph 3.10 EAT
Practice Direction 2023.
