United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 72_94_2507

Appeal No. PA/72/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 July 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

(AS IN CHAMBERS)

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MR D A STOCKS          APPELLANT

SOLIHULL METROPOLITAN BOROUGH COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN PERSON

For the Respondents MR G STEPHENSON

(OF COUNSEL)

Town Clerk & Chief

Executive Officer

Solihull Metropolitan

Borough Council

PO Box 18

Council House

Solihull

West Midlands B91 3QS


 


MR JUSTICE MUMMERY: (PRESIDENT) This is an appeal by Mr Derek Stocks against the decision of the Registrar of the Appeal Tribunal dated the 10 March 1994. The Registrar refused to grant Mr Stocks application for an extension of time in which to serve a notice of appeal.

In order to understand the points on this appeal it is necessary to outline the course of the proceedings which have given rise to the appeal. Mr Stocks was employed by the Respondents to the proceedings, the Solihull Metropolitan Borough Council as Assistant Director of Education down to the 31 December 1991. On the 30 March 1992 he presented to the Industrial Tribunal an application for unfair dismissal. The proceedings were contested by the Council who said that the reason for Mr Stocks dismissal was redundancy. They denied that there was any unfairness.

The hearing took place before the Industrial Tribunal on the 25 and 26 March 1993. The Tribunal did not give full reasons for its decision on the application until the 17 December 1993. In the full reasons notified on that day the Tribunal unanimously decided that Mr Stocks was unfairly dismissed and the Council was ordered to pay the sum of £150 to him.

Mr Stocks' Notice of Appeal was received at the Appeal Tribunal on the 25 January 1994. The Notice bears the date 23 January. If the time for appealing ran from the 17 December, when Mr Stock was notified of the decision on liability, his appeal was not out of time. The period in which an appeal may be instituted to the Appeal Tribunal, is under Rule 3(2) of the Employment Appeal Tribunal Rules 1993, which came into force on the 16 December 1993:

"... 42 days from the date on which extended written reasons for the decision or order of the industrial tribunal were sent to the applicant ..."

The problem which has arisen in this case is that, after the hearing by the Industrial Tribunal on the 25 and 26 March 1993, there was a further hearing on the 9 September 1993 in order to deal with the dispute between the parties as to whether any basic award was due from the Council to Mr Stocks. At the hearing on the 9 September 1993 the Tribunal heard argument on the question of the basic award. On the 20 September 1993 the Tribunal, sitting at Birmingham, sent to the parties, and entered in the Register, a "summary of reasons" for the decision which is stated at the heading of the summary. The decision is stated to be:

"... that the applicant was unfairly dismissed. The respondent is ordered to pay the sum of £150 to the applicant. No basic award is made. "

The summary of reasons which follows relates both to the issue of unfairness and as to the point on whether a basic award should be made. The Tribunal held in those reasons that the dismissal was unfair by reason of failure to consult. The Tribunal reasoned that the basic award was reduced to nil since the Tribunal was satisfied that the Council had made payments to Mr Stocks by way of enhanced pension provision as agreed between the parties in December 1991 on the ground that the dismissal was by reason of redundancy and, alternatively, the Council had paid the basic award by way of payment of enhanced pension entitlements.

After receiving the summary reasons Mr Stocks wrote to the Regional Office of the Industrial Tribunals in Birmingham on the 5 October referring to the decision and summary reasons dated the 20 September. He made a formal request for full written reasons. He stated in paragraph 2 of the letter:

"An appeal is being considered consequent upon the Tribunal's decision not to make a Basic Award. It is assumed that the full reasons will cover not only the factors which prompted the Tribunal not to order a Basic Award, but also the factors which persuaded it to find my dismissal to have been unfair. Though any appeal will necessarily be on points of law, it is felt that the circumstances of my dismissal are highly relevant."

He wrote a follow up letter on the 13 November. That letter was prompted by his receipt of full reasons for the decision of the Tribunal that no basic award was due to him. The reasons for that decision were entered in the Register and copies sent to him on the 5 November. In his letter of the 13 November to the Regional Office at Birmingham, Mr Stocks said he noted that the full reasons registered on the 5 November related only to that part of the case heard at the reconvened hearing on the 9 September. He said that his letter of the 5 October was specific in requesting full reasons for the decision as a whole, that is the decision registered on the 20 September. He quoted from the earlier letter, the paragraph already read in full.

He concluded:

"I should be grateful for your confirmation that the requested Full Reasons will be issued in due course and that the 42 days allowed for lodging an appeal will commence on the date of their registration rather than on 5th November 1993."

The Regional Office sent a reply to that letter on the 23 November. The reply was not sent to Mr Stocks' new address in Cumbria. It did not deal with the point which he had raised in the last paragraph.

The first question is whether in the circumstances outlined above, Mr Stocks is out of time for appealing the decision not to make a basic award to him. That is the only part of the decision of the Industrial Tribunal that he is interested in appealing, since the question on unfair dismissal went in his favour.

Whether his appeal is in time or not depends on the proper construction of the Rules which were in force at the relevant time. Those were the 1980 Rules. They are not significantly different from the 1993 Rules on this point. The Rules (Rule 3 (1A)) provide that:

"The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which full written reasons for the decision or order of the industrial tribunal were sent to the appellant."

Mr Stocks' argument, which I think is right, is that "the decision" referred to is, on the facts of this case, the whole decision of which he was notified on the 20 September. That was the occasion on which he was notified that he had succeeded in his claim for unfair dismissal, but had failed in his claim for a basic award consequent on that unfair dismissal. That was the whole decision. He was dissatisfied about part of it, but he never received full written reasons for the whole decision until the reasons notified on the 17 December.

I am of the view that his appeal was not out of time. Mr Stephenson for the Council has argued that this is not the correct construction. He says that all that is meant by "the decision" in Rule 3(1A) is the decision which would lead the Appellant to appeal. The Appellant would only appeal a decision which was adverse to him. Mr Stocks had been notified of the full reasons for the decision adverse to him on the basic award on the 5 November. Instead of instituting his appeal within 42 days of that date, he waited until after the 42 days had expired. He knew he was dissatisfied with those reasons. He need not have waited until the 17 December for the full reasons on liability, before deciding whether or not to appeal. He could have decided to appeal the decision which he knew had been reached against him by putting in a protective notice. If the reasons he received on liability subsequently led him to make an alteration in the grounds of his appeal, he could have applied for leave to amend.

I am unable to agree with those arguments on construction. As I have already stated, it seems to me that "the decision" was given by the Tribunal on the 20 September. The full written reasons for that decision were not provided to Mr Stocks until the 17 December. All that he received on the 5 November were written reasons for part of the decision i.e. on the basic award.

On that view it was never necessary for Mr Stocks to make the application for an extension of time. The appeal must succeed. I have also heard arguments on the alternative basis and should state briefly my decision on discretion. Mr Stephenson argued that, if Mr Stocks was wrong on the construction of the Rules, he would have been out of time and he would require an exercise of discretion in his favour from the Tribunal. He argued that the discretion to extend time should not be granted. He rightly reminded me that the cases establish that the Tribunal adopts a strict approach. Rules are Rules. 42 days are 42 days. An extension will only be granted in what have been described as exceptional circumstances.

Although this appeal may have given rise to a novel point, it was not an exceptional circumstance. The position was that it was for Mr Stocks to comply with the Rules. He could not use as an excuse for non compliance the fact that he had sought, but not obtained, confirmation from the Industrial Tribunal as to the date from which the 42 days would run.

I am unable to accept those submissions. In my judgment, the facts in this case are so unusual that they do amount to an exceptional case which would justify exercising the discretion of the Tribunal in favour of Mr Stocks, if he is wrong on the point of construction. The reason why this is an exceptional case is that, in the normal course of events, if a Tribunal gives a decision in two parts, (and that is by no means unknown), it first gives full reasons for the decision on liability and then gives full reasons in consequence of a later hearing on remedy.

In this case, although the decision on both aspects were given at the same time on the 20 September, following the two hearings, the Tribunal, for reasons of which I am not aware, gave full reasons on the question of basic award before it gave full reasons on the question of liability. It was reasonable and responsible of Mr Stocks to wait to make a final decision on whether to appeal or not until he had received the entirety of the reasons.

It is true, as Mr Stephenson points out, that the Notice of Appeal does not identify any points as grounds of appeal which arise out of the decision on liability. But Mr Stocks was not to know, until he had received the full reasons on liability, whether or not there would be something in that decision which might effect the grounds of his appeal against the refusal of the basic award. It is the common experience of this Tribunal that, when full reasons are given on remedy, they cross refer to materials which are contained, and findings of fact which are set out, in the full reasons on liability.

In my view, Mr Stocks should not be prejudiced in the matter of the appeal by the fact that in this case the Tribunal choose to reverse the normal order and give full reasons on remedy before giving full reasons on liability. I regard this as an exceptional case which would justify departing from strict adherence to the Rules and extending the time for appealing, should that be required.

In brief, therefore, I hold (1) that extension of time was not required because, on the true construction of the Rules, the appeal was within time. (2) If I am wrong on that I find that this is a proper case for exercising discretion to extend time for appealing against the decision on the basic award. Whichever of the reasons applies, the appeal is allowed.