Korashi v Abertawe Bro Morgannwg University Local Health Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Rimer,Lord Justice Etherton |
| Judgment Date | 01 March 2011 |
| Neutral Citation | [2011] EWCA Civ 187 |
| Docket Number | Case No: A2/2010/2440 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 March 2011 |
[2011] EWCA Civ 187
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Three Judges)
Before : Lord Justice Maurice Kay (Vice President of the Court of Appeal, Civil Division
Lord Justice Rimer
and
Lord Justice Etherton
Case No: A2/2010/2440
APPEAL REF NO: UKEAT042409JO
Mr Anthony Korn (instructed by Irwin Mitchell LLP) for the Appellant
Mr Peter Wallington QC and Mr Edward Capewell (instructed by Morgan Cole LLP) for the Respondent
Hearing date : 16 February 2011
Lord Justice Maurice Kay :
Dr Korashi is an obstetrician and gynaecologist. He was employed by the respondent (the Trust) or its predecessor from 1 February 2002 until he was dismissed in March 2008. Between 2003 and 2008, the relationship between Dr Korashi and the Trust was fractious. He has commenced several sets of proceedings in the Employment Tribunal (ET). The first was dismissed. The second was partially successful. We are concerned with the third, fourth, fifth and sixth, which were commenced on various dates between July 2006 and August 2007 before his dismissal. It raised issues of race discrimination and detriment by reason of having made protected disclosures ("whistleblowing"). There is also a pending unfair dismissal claim. So far as the present proceedings are concerned, there was an eight-week hearing in the ET which ended on 15 December 2008, with further submissions in January 2009. The ET promulgated its judgment, dismissing the claims, on 17 July 2009. Dr Korashi has appealed to the Employment Appeal Tribunal (EAT). Initially, he prepared his own grounds of appeal and these were subsequently revised. However, at various stages in the EAT and now in this Court, Dr Korashi has been represented by Mr Anthony Korn, who had represented him in the ET. The grounds of appeal include "reasons" and "perversity" challenges.
The ET judgment is long (55 pages). It was described by the EAT as being "in a slightly unusual form": UKEAT/0424/09/JOJ, at paragraph 8. The case for Dr Korashi is that it is fundamentally flawed. Appeals to the EAT alleging an insufficiency or deficiency of reasons are by no means uncommon. The same is true throughout the tribunal system and, to a lesser extent, in the courts. The general principles applied in the ordinary courts are set out in English v Emery, Reimbold & Strick Ltd [2002] 1 WLR 2409. They embrace the possibility that the Court of Appeal may adjourn an application for permission to appeal and remit the case to the trial judge with an invitation to provide "additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings" (per Lord Phillips of Worth Matravers, at paragraph 25). Such a procedure owes more to pragmatism than to purity. As Lord Phillips said (at paragraph 24):
"We are not greatly attracted by the suggestion that a judge who has given inadequate reasons should be invited to have a second bite at the cherry. But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons."
And, of course, if an original decision is overturned for insufficiency of reasons, there may be no alternative to a lengthy and expensive retrial.
The device of remission for an amplification or augmentation of reasons has become particularly developed in relation to appeals to the EAT. It has become known as the Burns/Barke procedure, following Burns v Royal Mail Group [2004] ICR 1103 and Barke v SEETEC Business Technology Centre [2005] ICR 1373. It is mentioned in the EAT Practice Direction 2008, which refers to
"an invitation [to the ET] from the judge or Registrar [of the EAT] to clarify, supplement or give its written reasons."
I shall have to refer to some of the authorities later.
In the present case, by an amended order sealed on 29 July 2010, the EAT (HHJ Ansell, Mr B Beynon and Mr T Stanworth) ordered the parties "to prepare and, where possible agree … a list of questions to be submitted to the Employment Judge under the Burns/Barke procedure". The order envisaged a subsequent directions hearing at which the EAT would resolve any remaining issues as to the contents of the proposed Burns/Barke letter to the ET. That directions hearing took place before the EAT, constituted as before, on 20 September 2010. It made provision for HHJ Ansell to approve a list of questions in respect of which the ET would be invited to provide answers "by reference to their notes of evidence, witness statements and documents before the Tribunal at the hearing and without the need to adduce or allow the adduction of any further oral evidence".
In due course, an approved list of questions was sent to the ET and the ET, under the signature of the Employment Judge, provided its answers. Two observations are appropriate this stage: (1) Dr Korashi consistently opposed the use of the Burns/Barke procedure, contending that it was inappropriate in this case, and his and Mr Korn's input to the procedure have been without prejudice to his right to appeal the order of the EAT; and (2) although the answers were signed off by the Employment Judge alone and Dr Korashi was originally minded to object to them on the basis that they do not say in terms that they were provided on behalf of all three members of the ET, Mr Korn has effectively and wisely abandoned that point.
The questions and the answers are of unusual length and scope. Indeed, this is part of Dr Korashi's objection to them. Rather than set them out here, I append them to this judgment. This appeal, for which Elias LJ granted permission, challenges the use of the Burns/Barke procedure in this case.
The authorities
Since English, the practice of remission for the amplification or augmentation of reasons has undergone development more in relation to EAT appeals than in any other jurisdiction. Some guiding principles have emerged.
In Burns, Burton J (President of the EAT) said (at paragraph 13):
"Of course there are dangers in remitting to the original tribunal a case where the ground of appeal is inadequacy of reasoning, and there will be some cases in which the reasoning is so inadequate that it would be unsafe to remit to the same tribunal. Equally, there will be the opportunity to a court below to...
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