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17/11/2009

Dolan v. Chief Constable of Avon & Somerset

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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 [2008] UKHL 43, [2008] 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.

HELD: (1) The tribunal had not erred in law in considering that it only had power to determine the issues remitted to it by the EAT, Aparau v Iceland Frozen Foods Plc (No.2) [2000] 1 All E.R. 228 applied. Moore-Bick LJ in Aparau made it clear that the extent to which the tribunal's jurisdiction was revived in consequence of an order remitting a matter to it depended entirely on the scope of the remission. If, as in the instant case, the matter was remitted for the tribunal to consider certain specific issues, it had no jurisdiction to hear or determine matters outside the scope of those issues. It followed that the tribunal had no power to allow a party to amend its case to raise issues which had not previously been before it. The principle of finality of litigation was important. It would be contrary to the principle of legal certainty to allow past transactions to be reopened because the existing law at the relevant time had not yet been explained or had not been fully understood, Biggs v Somerset CC [1996] 2 C.M.L.R. 292 considered. (2) The question of issue estoppel did not arise. The instant case was not one of a party in a further stage of proceedings relying on a point which should have been advanced by him at an earlier stage. However, if issue estoppel had applied, the position of the chief constable would not have fallen within the exception referred to in Arnold v National Westminster Bank Plc (No.1) [1991] 2 A.C. 93, Arnold considered. No further relevant material had become available, it was just that another case had given the chief constable's argument a much improved prospect of success. That was a situation which was not entirely unusual in litigation.

Appeal dismissed

Counsel for the respondent: Emma Smith 

LTL 28/5/2008
Dolan.pdf

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