Employment Appeal Tribunal
Where a case was remitted to an employment tribunal to consider specific issues, the tribunal had no jurisdiction to hear or determine matters outside the scope of those issues.
The appellant chief constable appealed against an employment tribunal's decision that the respondent employee (D) had been treated less favourably on the grounds of his disability, and that his treatment had not been justified.
D had worked as a police officer for many years. Whilst absent on sick leave he received a letter from the chief constable. The letter stated that if he remained on sick leave his pay would be reduced to half pay, but if he were able to provide an early return to work date his pay would remain unaffected. He resigned and claimed constructive dismissal and disability discrimination. The employment tribunal upheld his claims and the chief constable appealed to the Employment Appeal Tribunal. The EAT in Chief Constable of Avon and Somerset v Dolan remitted the case to the tribunal for it to reconsider and articulate its reasoning in relation to whether the disability related discrimination had been justified. In the meantime, the decision of the House of Lords in Malcolm v Lewisham LBC  UKHL 43,  1 A.C. 1399 was handed down. At the remitted hearing, the chief constable invited the tribunal to reconsider whether D had been less favourably treated in light of the decision in Malcolm. The tribunal refused and stated that it was limited to considering the narrow issue of justification identified by the EAT. It went on to conclude that the chief constable had failed to justify D's less favourable treatment.
The chief constable submitted that the form of remittal by the EAT did not preclude a consideration of whether D had suffered less favourable treatment in the light of Malcolm. The chief constable argued that issue estoppel did not apply, and even if it did, the case would fall within the recognised exceptions to issue estoppel.
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