Court of Appeal rejects call by solicitor to quash dismissal of his claim against council

In Eyitene v Wirral Metropolitan Borough Council [2014] EWCA Civ 1243 the Employment Appeal Tribunal had dismissed the appellant’s appeal against the decision of the tribunal.

In a Court of Appeal judgment published this week, Lord Justice Underhill revealed that permission had been refused for all grounds of appeal subsequently filed with the court bar one specific point.

The appellant had accused the employment judge in the ET of bias over things said in the course of the hearing and in the written reasons. The EAT then asked for comments from the judge himself and the lay members.

One of the matters that the appellant said demonstrated bias was a statement in the reasons referring to his conduct as “brinkmanship”. In response to that statement both lay members said they had not seen the written reasons and so were not in a position to comment on what was said in the paragraph in question.

The appellant argued before the EAT that it was wrong in principle that lay members should not have seen, and could not therefore have approved, the written reasons and that it followed from that fact that the decision could not be regarded as a properly made decision of the whole tribunal.

This submission was rejected by the EAT, but permission was then given for the point to be taken in the Court of Appeal.

Rejecting the appellant’s case, Lord Justice Underhill said it was clear on the facts that the Employment Tribunal had followed the standard practice – which is sustained through the training that both judicial and lay members are required to undergo – about the drafting of written reasons.

The judge said he could understand why Rimer LJ thought the procedure as stated by the EAT merited consideration by the Court of Appeal.

“It is certainly the practice in some tribunals – including, as it happens, the EAT itself (of which he is a former member) – for all the members to approve a written decision in draft before it is finally promulgated,” Lord Justice Underhill said.

“But I do not believe that that is necessary. What matters is that the decision and reasons as promulgated should truly record the conclusions, with the essential supporting reasoning, of all the members of the tribunal on the matters falling for decision.”

In Lord Justice Underhill's judgment the standard practice – as set out by him in the CoA ruling – ensured, if properly followed, that the employment judge was in a position to draft reasons which satisfied that requirement.

“That being so, it is entirely legitimate for the members to leave the detailed expression of the conclusions and reasoning to the Judge, who has both the responsibility to do the drafting and the relevant expertise; and there is no reason why they should have to see his draft before it is promulgated simply in order to check that he or she has done the job properly,” the CoA judge said.

“I note in this connection – though it is not in itself in any way decisive – that under the then current Rules of Procedure only the Judge is required to sign the reasons: see rule 30(4). Having said that, the reasons as promulgated remain those of the tribunal as a whole, and I regard it as important that Judges and lay members alike are aware of a lay member's right to ask to see a draft before promulgation and that lay members should feel no inhibition about exercising that right if they wish to do so in a particular case.”

Lord Justice Underhill added that if, contrary to his view, it were necessary that members should have approved not only the substance of the reasons but the form in which they were expressed, one consequence would be that the “healthy practice” of employment judges in straightforward cases giving the reasons of the tribunal orally at the end of the hearing would become much less common: “the reasons would have to be fully drafted, without leaving any room for extemporisation, and members taken through the draft before it was delivered, which would often simply not be possible within the time allocated for the hearing”.

That would be very regrettable, the Court of Appeal judge said.