These posts have been filed under: ‘procedure’.
There is a Tribunal Procedure Committee, which drafts rules for tribunals.
But the Committee only deals with the First-tier and Upper Tribunals; the employment tribunals are neither. So the Committee’s work, and their rules, are not relevant to employment tribunal litigation.
The Court of Appeal has issued a sharp reminder of the limits of the Burns / Barke procedure.
The Burns / Barke processes (named from the cases of Burns v. Royal Mail Group plc and Barke v. SEETEC Business Technology Centre Ltd) is the system by which the Employment Appeal Tribunal may ask an Employment Tribunal questions to clarifying their reasoning.
The Court of Appeal makes two points.
Firstly, it is important for the EAT to focus its questions and clearly identify where the ET’s reasoning may be inadequate. It is not appropriate to ask a general question or to ask the ET to supplement its decision if it has already adequately explained its reasoning.
Secondly, the ET must be careful to limit itself to answering the questions asked by the EAT. It must be careful not to act as an advocate for its own decision. In this case, the ET provided notes of evidence and commented directly on the notice of appeal. This, the Court of Appeal, concluded went beyond the scope of the Burns / Barke process.
What does this mean for those appearing in the EAT when are Burns / Barke procedure is followed?
At the point at which questions are being formulated it is appropriate to make submissions on the wording of the question. This should, as the Court of Appeal says, narrowly worded and focused on the ET’s reasoning.
If the ET does go beyond the scope of the Burns / Barke rule, you should make submissions that this additional material cannot be used to correct a flawed decision. The purpose of the Burns / Barke process is to allow the tribunal to clarify their existing decision; not to allow them to write a new one.
That is to say, don’t just complain.
Parties surprisingly often write long letters to the tribunal telling them all about how annoying and unreasonable the other side is being in their conduct of the case.
If you’re applying to have the other side struck out for unreasonable conduct, obviously you have to say why. But if you’re not asking the tribunal to do anything, there’s no point boring it with an account of their misdeeds.