Remitting cases for rehearing – Employment Law Advocates

An important part of every successful appeal is the decision which is made at the very end of the hearing as to whether the appeal disposes of the case or whether it is necessary for it to be remitted, either to the tribunal that made the original decision, to revisit a few points, or to a fresh tribunal, which can often mean a complete rehearing. Many cases can turn on the decision that is made. For example, most practitioners would feel pessimistic about a remission to the same tribunal, believing that the same result is likely to be reached by another route. A rehearing of a complex case can also result in a substantial increase in costs, impacting negatively even on the party which is ultimately successful.

Two authorities on remission are very well known. One of them, Sinclair Roche & Temperley v Heard, sets out the factors to be taken into account in deciding whether a remission is to be to the same tribunal or to a new one. The other, Dobie v Burns, deals with cases in which a tribunal is found to have misdirected itself but in which it is argued that no remission is necessary andthe original decision should be upheld on the grounds that it would have reached the same conclusion even if it had applied the correct test. According to Dobie v Burns, this course is only the appropriate one if the decision was ‘unarguably right’.

A different issue arises in those cases in which the appellant suggests that the tribunal can substitute its own finding for that of the tribunal, without remission being required. The principle to be applied in this situation is much less well-known and derives from a case called Hellyer Brothers v McLeod. It is that a substitution can be made, ”If we are satisfied that a conclusion reached as a result of a misdirection is plainly and unarguably wrong upon the facts found by the industrial tribunal and those facts do not require further amplification or reinvestigation”. This case was reported in the ICR but not in the IRLR and is not available on the Bailii website, which might explain its relative obscurity.

In the recent decision of Devon and Somerset Fire and Rescue Service v Tilke, it appears that even the learned judge of the Employment Appeal Tribunal had not been aware of McLeod and he had apparently reached the conclusion that there was no scope for the appeal tribunal to substitute a finding even where there was only one possible conclusion to be reached from its own analysis of the facts. This outcome would have resulted in the rehearing of a case which had taken seven days to hear on the first occasion so an appeal was made to the Court of Appeal, who overturned the decision. It is hoped that the judgment will be reported widely so that the principle in McLeod is more widely known.