Thanks to Neil Addison of New Bailey Chambers for preparing this case summary
Is the EAT obliged to remit a case to an employment tribunal where there is an issue of fact to be decided?
Usually yes, unless the parties agree otherwise, held the Court of Appeal in Jafri v Lincoln College.
The case involved unfair dismissal. The employment tribunal made findings of fact which the EAT considered were unjustified; however, it did not remit the case back to the employment tribunal, stating that the employment tribunal would have reached the same conclusion anyway.
The Court of Appeal held that the EAT was not entitled as of right to resolve factual disagreements. However, Lord Justice Underhill and Sir Timothy Lloyd said this "with regret", noting that remitting cases prolongs cases and expense. They added that even where there was a factual dispute, "there is no reason why the EAT cannot still decide the issue if the parties agree; and in an appropriate case they should be strongly encouraged to do so".
As a result of this case, the EAT may encourage parties to agree that it should make a final decision in preference to remission back to the employment tribunal.