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Fresh or Unfresh? Remission from the EAT

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The Employment Appeal Tribunal (Burton P.) has provided, for the first time, guidelines on whether a case should be remitted to the same or a different tribunal, following a successful appeal. The factors, contained in para. 46 of the judgment in Sinclair Roche & Temperley v Heard & Fellows, are:

  • proportionality: ordering a fresh hearing always adds considerably to the cost;
  • passage of time: the EAT should not send a matter back to the same tribunal if there is a real risk they will have forgotten about the case;
  • bias or partiality: if there is a question (note: the word 'question' is not defined) of bias, or the risk of prejudgment, the matter should not be sent back to the same tribunal;
  • totally flawed decision: it is not appropriate to remit to the same tribunal if the first decision is completely flawed, or there has been a complete mishandling of it;
  • second bite: the EAT should guard against the risk of a tribunal wanting to reach the same result, if only on the basis of the natural wish to say 'I told you so'; but balance this against,
  • tribunal professionalism: in the absence of clear indications to the contrary, the EAT should assume that the tribunal below is capable of a professional approach in dealing with the matter on remission. ETs are only too familiar with legal approaches changing, and applying a different legal test one week to that which they applied a year or a week before.

In conclusion, Buton P. stated:

"It follows, that where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a 'totally flawed' decision...) then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal."

He also described remission to the same tribunal as appropriate where "there is unfinished business to be done." (para. 47.2)