When Will the Employment Appeal Tribunal Remit a Case to a Fresh Tribunal Rather Than the Original Panel?

When the Employment Appeal Tribunal allows an appeal, it has a discretion as to whether to remit the case to the same Employment Tribunal that heard it originally or to a freshly constituted tribunal. The choice is governed by the principles set out by the Court of Appeal in Sinclair Roche & Temperley v Heard [2004] IRLR 763. The key factors are the nature and extent of the error, whether the original tribunal's findings of fact can be preserved, and whether a fair rehearing is possible before the same panel.

Where the error is fundamental — for example, a serious misdirection of law that permeated the entire decision, or a finding of bias or procedural unfairness — the Employment Appeal Tribunal will ordinarily remit to a fresh tribunal. Where the error is narrow and confined, and the original tribunal's findings of fact remain intact, remission to the same tribunal may be appropriate and more efficient. The overriding consideration is whether justice can be done by the original panel or whether a fresh start is necessary.

Legal Framework

The Sinclair Roche & Temperley v Heard Principles

In Sinclair Roche & Temperley v Heard [2004] IRLR 763, the Court of Appeal set out the factors that should guide the Employment Appeal Tribunal in deciding whether to remit to the same tribunal or a fresh one. The relevant considerations include: the proportionality of a complete rehearing, the practical ability of the original tribunal to reconvene, whether the original tribunal has made findings of fact that are unaffected by the error and can be preserved, and whether there is a real risk that the original tribunal would be unable to approach the case with an open mind.

The court emphasised that remission to the same tribunal is generally appropriate where the error is narrow, the original tribunal's findings of fact are substantially unimpeached, and a complete rehearing would be disproportionate. Remission to a fresh tribunal is appropriate where the error is fundamental, where the findings of fact are tainted by the error, or where the conduct of the original hearing gives rise to a concern about fairness.

Remission to the Same Tribunal

Remission to the same tribunal is the more efficient course where the error is confined to a discrete issue and the original tribunal's findings of fact on the remaining issues are sound. The same tribunal can apply the correct legal test to the facts it has already found, without the need for the evidence to be heard again.

This form of remission is common where the appeal succeeds on a misdirection of law that affected only one aspect of the case, or where the tribunal's reasons were inadequate on a specific issue and the tribunal is directed to provide supplementary reasons. The original tribunal's familiarity with the case is an advantage in these circumstances.

However, remission to the same tribunal is not appropriate where the error raises a concern about the tribunal's ability to approach the matter afresh. If the tribunal has expressed strong views on the issue that is to be reconsidered, there may be a legitimate concern that it will reach the same conclusion regardless of the correct legal direction.

Remission to a Fresh Tribunal

Remission to a fresh tribunal is appropriate where the error is so fundamental that the entire decision is tainted, where the appeal succeeded on the ground of bias or procedural unfairness, or where the passage of time makes it impractical for the original tribunal to reconvene.

A fresh tribunal starts with a clean slate. It will rehear the evidence, make its own findings of fact, and apply the correct legal test. While this is more time-consuming and costly, it ensures that the rehearing is untainted by the errors of the original hearing.

The Employment Appeal Tribunal will also consider the practical question of whether the original tribunal is available to reconvene. Employment Tribunal panels include lay members whose terms may have expired, or who may no longer be available. Where the original panel cannot reconvene, remission to a fresh tribunal is the only option.

Common Errors and Misconceptions

A common misconception is that a successful appeal automatically results in remission to a fresh tribunal. It does not. The Employment Appeal Tribunal exercises its discretion based on the specific circumstances. Where the error is narrow and the original tribunal's findings are sound, remission to the same tribunal is the more proportionate course.

Another error is to assume that the parties have no role in the decision on remission. Both parties are entitled to make submissions on the form of remission, and the Employment Appeal Tribunal will consider their representations. An appellant who considers that a fresh tribunal is necessary should be prepared to explain why, by reference to the nature of the error and the risk of unfairness.

Some appellants expect that a remission to the same tribunal means the tribunal will simply correct its error and otherwise leave its decision intact. This is not always the case. The original tribunal may need to rehear evidence on the affected issue, take further submissions, and reconsider its decision in the light of the correct legal direction. The process is not merely a formality.

Respondents sometimes fail to appreciate the strategic significance of the remission question. A remission to a fresh tribunal — which rehears all the evidence — may produce a different outcome even on issues unrelated to the error that led to the appeal. This can be an advantage or a disadvantage, depending on the case.

A further error is to fail to prepare submissions on the form of remission. Both parties should address this issue in their skeleton arguments. An appellant who assumes that remission to a fresh tribunal is automatic may be surprised if the Employment Appeal Tribunal directs a remission to the same tribunal. A respondent who fails to argue for the same tribunal may lose the advantage of findings of fact that were favourable to it.

Practical Application

The question of remission should be addressed in the skeleton argument for the full hearing. Both parties should set out their preferred form of remission and explain why it is appropriate. The Employment Appeal Tribunal will determine the question after hearing submissions from both sides.

For appellants, the key argument for a fresh tribunal is typically that the error was so fundamental that the original tribunal's entire approach was flawed, or that the original tribunal has demonstrated a mindset that would make it difficult to approach the case afresh. Specific examples from the judgment — such as strong expressions of view on the issue to be reconsidered — can support this argument.

For respondents, the key argument for remission to the same tribunal is typically proportionality. A complete rehearing involves additional cost, delay, and witness inconvenience. Where the error is narrow and the original tribunal's findings on other issues are unimpeached, the same tribunal can deal with the matter more efficiently.

The passage of time is a practical factor. If a significant period has elapsed since the original hearing, the original tribunal may have difficulty reconvening or recalling the evidence. In such cases, a fresh tribunal may be more appropriate even where the error was narrow.

Process and Timing

The Employment Appeal Tribunal determines the form of remission at the conclusion of the appeal hearing or in its reserved judgment. If the appeal is allowed, the EAT will specify whether the case is remitted to the same or a different tribunal, and will give directions for the remitted hearing.

A remitted hearing before the same tribunal may be listed relatively quickly, as the tribunal is already familiar with the case. A remitted hearing before a fresh tribunal will take longer to list and will involve a full rehearing of the evidence. Both forms of remission add to the overall duration of the proceedings.

Where the appeal succeeds and the case is remitted, the Employment Appeal Tribunal may also give directions as to the scope of the remission — for example, specifying which issues are to be reconsidered and which findings are to stand.

When to Seek Specialist Counsel

The question of remission has significant practical consequences for both parties. A specialist in Employment Appeal Tribunal work will know the factors that influence the EAT's decision and will be able to make effective submissions on the form of remission that best serves the client's interests.

A specialist can also advise on the likely outcome of a remitted hearing, which informs the decision on whether to pursue the appeal in the first place. Where a remission to a fresh tribunal is likely and the evidence does not support a better outcome on rehearing, the appeal may not be worth pursuing.

Frequently Asked Questions