Dear EAT, please follow the correct principles. Warmest regards, the Court of Appeal

15 Jun 2021

By Blythe Petrie, Trainee Solicitor at Blackadders LLP

If you are unhappy with a decision, your first instinct is often to try and reverse it. I think it is fair to say that this is pretty universal in all areas of life. If an Employment Tribunal (ET) case is not decided in your (or your client’s) favour, you can appeal to the Employment Appeal Tribunal (EAT) in the hope that they will overturn the decision of the ET and find in your favour. 

On 7 May 2021, the Court of Appeal (CoA) laid down its judgement in the case of DPP Law Ltd v Greenberg [2021] EWCA Civ 672 (hereinafter referred to as ‘the DPP case’), whereby guidance was given to the EAT as to its role when examining the reasons given by an ET in its judgements. 

The facts

A solicitor and director, Mr Greenberg, had been dismissed by his employer, DPP Law Ltd (“DPP”). The reason for dismissal was gross misconduct, after he accepted a sum of £150 from the father of a client funded by legal aid. A condition of DPP’s legal aid contract was that the ‘topping up’ of legal aid sums was forbidden. Mr Greenberg received a letter from DPP explaining the allegations against him, the principal one being that he had breached the legal aid contract. A disciplinary hearing took place, whereby one director found that the allegations against Mr Greenberg amounted to gross misconduct, which warranted summary dismissal. Mr Greenberg appealed this decision but was unsuccessful. Mr Greenberg then commenced proceedings at the ET for unfair dismissal. 

The ET and the EAT’s decisions

The ET dismissed the claim, holding that DPP had a genuine belief that Mr Greenberg’s actions constituted gross misconduct. The judge correctly applied the infamous British Home Stores Ltd v Burchell [1980] ICR 303 three stage test which is applicable in misconduct cases. After analysis of the relevant facts, the ET based its decision on the fact that it was reasonable to conclude that it was either ‘knowingly improper, such that it seriously compromised his [Mr Greenberg’s] integrity, or was reckless to the extent of gross negligence’ of Mr Greenberg to accept the payment of £150.

However, the EAT took different view and allowed the appeal. The EAT’s reasoning was that the case against Mr Greenberg was ‘essentially circumstantial and inferential’. The EAT also criticised the ET for two reasons: (1) that the ET was wrong to base its decision on its own analysis of the evidence; and (2) that the ET failed to make concrete findings to the effect that either of the partners involved in Mr Greenberg’s dismissal would have dismissed him on the sole ground of negligence.

The CoA’s decision

DPP further appealed to the CoA, who criticised the EAT. The CoA’s view was that the EAT had used the wrong approach in their judgement, not the ET. In his judgement, Lord Justice Popplewell highlighted three principles which should be followed by the EAT when considering the reasons given by the ET in its judgements:

1. An ET decision must be read fairly, as a whole and without being hypocritical. The EAT must not look at individual phrases or passages on their own;
2. There is no requirement for an ET to identify all evidence relied upon whilst reaching its conclusions of fact. A requirement of this nature would put a burden on any fact finder. The ET is also not required to go into any further detail than is necessary to be Meek compliant (Meek v Birmingham City Council [1987] IRLR 250). Further, the ET is to be as simple, clear and concise as possible when expressing their findings and reasonings; and
3. Following on from point 2 above, an EAT should not find that the failure of an ET to refer to evidence means that such evidence did not exist. Similarly, the EAT should not adopt the view that the failure of an ET to refer to the evidence does not mean that such evidence was not considered when reaching the conclusion stated in the decision. 

Ultimately, the CoA found that the EAT had failed to follow the above principles, specifically point 3 above. DPP’s appeal was successful and it was held that the ET was correct in its identification of the law and of the relevant points for consideration. The CoA found that the ET had not based its decision on its own analysis of the evidence and did, in fact, make a clear and reasoned judgement. 

The DPP case provides very clear guidance on the points to be considered by the EAT when examining the reasoning provided by the ET in its decisions. It would be good practice for the three principles above to be kept in mind when deciding whether to appeal a case to the EAT. The CoA has provided a strong message to the EAT here and it will be interesting to see if the EAT takes note! 

If you need any advice regarding appeals to the EAT, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

@EmpLawyerBlythe

www.blackadders.co.uk