20th October, 2017

Relevance of observations contained in remedy on remitted liability hearing? - 2017 EWCA Civ 3772

The Claimant was dismissed for conduct related reasons. Following an appeal against a finding of unfair dismissal, the case was remitted back to the Employment Tribunal to reconsider the section 98(4) question. Adopting the clear guidance of the Employment Appeal Tribunal, the Employment Tribunal reversed its earlier finding and concluded the claimant had been fairly dismissed. The Employment Tribunal set aside its earlier judgment on remedy insofar as it related to the unfair dismissal claim. The Claimant appealed the remitted decision; asserting that the Employment Tribunal had failed to give due consideration to the prospect of lesser sanction in the form of a warning. . The EAT rejected the appeal. The Claimant was granted permission to appeal to the Court of Appeal. Central to the appeal was the proposition that there was an inconsistency between the Employment Tribunal's assessment of the relevance misconduct at the liability and remedy stages.  The appeal was dismissed. Ed Morgan submitted: (1) there was no inconsistency since, the Employment Tribunal was performing different functions on liability and remedy; and (2) It would be impermissible for the Employment Tribunal to take into account its reasons on remedy which had been tainted by its earlier legal error and were irrelevant to the task required of it on remission. The Court of Appeal agreed.


Ed Morgan successfully represented the respondent at the initial appeal, the remitted hearing and the subsequent appeals.

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