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Giving reasons – Burns/Barke procedure clarified by the Court of Appeal

The Court of Appeal has recently handed down judgment in BMC Software Limited v Shaikh [2019] EWCA Civ 267, providing an important clarification of the use of the Burns/Barke procedure. Employment practitioners will be familiar with the Burns/Barke procedure in appeals on grounds of inadequate reasons; in an appropriate case, the EAT may remit the case to the ET to supplement its reasons, thereby potentially avoiding the costs of a full appeal.

The claimant brought proceedings in the ET for constructive unfair dismissal, wrongful dismissal, sex discrimination and equal pay. Her claim of equal pay was successful and, on the basis that breach of the equality clause amounted to a breach of trust and confidence, her claims of unfair dismissal and wrongful dismissal were also successful. The ET also decided that the breach of the equality clause amounted to sex discrimination.

The employer appealed to the EAT on a number of grounds relating to the burden of proof in genuine material factor cases and the findings of the ET on the evidence. At the sift, the grounds of appeal were amended to include a failure to provide adequate reasons for rejection of the genuine material factor defence.

The EAT upheld the appeal against the finding of sex discrimination on the grounds that s. 70 of the Equality Act 2010 excludes the sex discrimination provisions in cases of breach of the equality clause. The claimant did not seek to challenge this in the Court of Appeal.

The EAT also held that the ET did not clearly state its reasons for rejecting the genuine material factor defence. The EAT made an order that the matter “be remitted to the same Employment Tribunal, unless in the view of the learned Regional Employment Judge factors emerge which render such an arrangement impracticable, for it to state, after hearing submissions from the parties, its reasons for reaching the conclusions [on genuine material factor]”. The other grounds of appeal were rejected.

The employer appealed against the order of the EAT remitting the case to the Employment Tribunal. The claimant cross-appealed against the finding that the reasons were inadequate.

The claimant’s cross-appeal on the inadequacy of reasons was upheld, and therefore no order was made on the appeal. However, the Court of Appeal made clear in its judgment that the order of the EAT remitting the case to the ET was clearly wrong in principle. An order remitting the case to the ET to state its reasons would be perfectly appropriate at an earlier stage of an appeal to the EAT under the Burns/Barke procedure. The Court of Appeal noted that such orders are commonly made at the sift stage or at a preliminary hearing, and it would also be possible, though unusual, for the EAT hearing a full appeal to adjourn the appeal in order to obtain further reasons. However, the order made by the EAT on the final disposal of the appeal was an impermissible hybrid. The appeal having been allowed, the only possible order was that the claim be remitted to the ET to make a fresh decision.

The Court of Appeal also noted that the provision in the EAT’s order for further submissions from the parties to the ET was inappropriate if the only task was for the ET to state its reasons. Further, it was contemplated by the EAT’s order that remittal to the same tribunal may be impracticable, in which case the intention appeared to be that it would be to a different tribunal. One tribunal could not supply the reasons for a decision taken by another.

Ming-Yee Shiu acted for the appellant.

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