Employment Appeal Tribunal in Greenwood v NWF Retail Limited
Employment Tribunals are under a lot of Government scrutiny at present. The Ministry of Justice is to bring the administration of Employment Tribunals, together with that of the Courts. Their stated intention is to impose a “common culture”. The Department for Business, Innovations and Skills is currently proposing a large number of changes to the procedures in Tribunals, which will make them much more formal. We have of course moved a long way from the early days when there processes were meant to speedy and informal. The huge proliferation of employment law has put paid to the idea of simplicity. That said, however, there is much to be said for keeping workplace disputes out of civil courts, and to preserve whatever can be preserved of relative informality.
To an extent, this conflict is reflected in the recent decision of the Employment Appeal Tribunal in Greenwood v NWF Retail Limited UKEAT/0409/09/JOJ. The case concerned the question of what constitutes an adequate decision of an Employment Tribunal, and whether failure to give reasons for a decision will be grounds for an appeal.
In the early days there was much comment by judges criticising too much formality. As one put it, “Industrial Tribunals’ reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law…it would be 1,000 pities if these reasons began to be subjected to a detailed analysis and appeals were brought based on such an analysis”.
Against that, it has always been recognized that parties to a dispute should know why they have won or lost, and that any appeal court should be able to discern whether an error or law has taken place.
In 1994 the rules of Employment Tribunals’ were changed, and specific provisions about the written reasons for a judgment were set out. They had to include the issues identified by the Tribunal as relevant, if any issues were not so determined, what they were and why they were not determined, any findings of fact relevant to the issues and a concise statement of the applicable law. The judgment should then state how the relevant findings of fact and law had been applied, and if compensation was awarded, how the sum was calculated.
In Greenwood a Tribunal’s decision came under attack, and the debate that arose was whether the new rule was intended to be one of “guidance” or was “mandatory”. The underlying concerns reflected in a variety of judgments over the years, was between those who wanted the parties to have adequate information and others who were concerned to cut out unmeritorious appeals based on what might be called a “nitpicking” approach. The decision in this case was that the rule introduced in 1994 was not merely permissive, but set standards which had to be complied with. The more formal approach was preferred. A failure by a Tribunal to set out the requirements of the rule will constitute an error of law.
Some judges have indicated that a sensible Tribunal will identify each requirement of the rule and deal explicitly with those requirements in a judgment. This case makes it clear that a judgment will not be bad simply because the structure of the rule is not visible “so long as its constituent parts can be unearthed from the material beneath”.
Some will see this as a further step towards unnecessary formality in Tribunal decisions. The contrary view, however, is that this case will result in decisions that make it easier for parties to be sure whether or not there is a point of appeal. That clarity may well save a great deal of unwanted expense.
First published in The Grapevine Magazine
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