United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1104_94_2510

Appeal No. PA36/94, EAT/212/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 December 1994

Judgment delivered 9 June 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR R JACKSON

MRS M E SUNDERLAND JP

---

MR O ALI          APPELLANT

CHRISTIAN SALVESEN FOOD SERVICES LTD          RESPONDENTS

---

EAT/212/94

MR J E HIGH, MR T R MATTHEWS, MR S BESSEY & MR S L GREEN           APPELLANTS

CHRISTIAN SALVESEN FOOD SERVICES LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

PA/36/94

For the Appellant MR A GLENNIE

(OF COUNSEL)

Messrs Nicholsons

Solicitors

23 Alexandra Road

Lowestoft

Suffolk NR32 1PP

For the Respondents PROF P WALLINGTON

Messrs Edwards Lewis

Solicitors

Verulam Gardens

70 Gray's Inn Road

London WC1

EAT/212/94

For the Appellants MR J E HIGH &

MR T R MATTHEWS

IN PERSON

NO APPEARANCE BY OR REPRESENTATION ON

BEHALF OF MR S BESSEY

& MR S L GREEN

For the Respondents PROF P WALLINGTON

Messrs Edward Lewis

Solicitors

Verulam Gardens

Gray's Inn Road

London WC1


 


MR JUSTICE MUMMERY (PRESIDENT): There are two appeals before the Tribunal on which procedural questions have arisen. We think it advisable to rule on the procedural questions before we proceed any further.

The two appeals arise from the same decision, but have different Appellants. The background to the procedural questions is that the Industrial Tribunal sitting at Norwich on 23 and 24 November 1993 heard claims against Christian Salvesen Plc under the Wages Act 1986. The first appeal against the decision that those applications failed is brought by 5 Appellants; Mr High, Mr Green, Mr Osmond, Mr Matthews and Mr Bessey. The appeal is brought on the basis of summary reasons given by the Tribunal on 7 December 1993. Those Appellants had been represented at the hearing by a Mrs Bond of the Citizens Advice Bureau.

It appears that the Notice of Appeal signed by Mrs Bond and dated 14 January 1994 was served without extended reasons being requested from the Tribunal. The importance of that is that under the Employment Appeal Tribunal Rules 1993, replacing the 1980 rules which are similar in this respect, it is provided that the Appellant should serve on the Tribunal a copy of the extended written reasons for the decision of the Tribunal. The period in which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision were sent to the Appellant (Rules 3 (1) and (2) of 1993 Rules).

The request for full reasons was made by Mrs Bond on 26 January 1994 after she had been alerted to the position by a letter from this Tribunal. Mrs Bond's request was put before the Chairman of the Industrial Tribunals. He refused the request for full reasons, as it was out of time. It was in those circumstances that the appeal in the case of Mr High and Others was set down for a preliminary hearing. At the hearing today Mr High and Mr Matthews have appeared in person, Mr Wallington has appeared for the Respondent Company.

There is also before the Tribunal another appeal brought by Mr O Ali. He is represented by Counsel, Mr Glennie. He wishes to appeal against the same decision to which he was a party. For the same reasons as given to the other Appellants, his claim was rejected by the Industrial Tribunal. Mr Ali's case was set down for a full hearing, not for a preliminary hearing. When this was discovered I gave directions that both cases should come on together in order to sort out a number of procedural difficulties; first, the fact that one was set down as a preliminary hearing and the other as a full hearing; and, secondly, that the Tribunal only had before it summary reasons for the decision.

I mention some uncontested matters. The first is that the Respondent Company, is not correctly named in the Notice of Appeal or in the Industrial Tribunal Decision. The correct name is Christian Salvesen Food Services Plc. An order will be made amending the title to the appeal accordingly. Secondly, it is agreed between Mr Wallington and Mr Glennie that one of the agreements relevant to the dispute is not present in the documents before the Appeal Tribunal. But it is also agreed that it is possible to deal with the issues which arise on the appeal without having the relevant document, (the AEU Collective Agreement). Thirdly, as the normal procedure of supplying extended reasons on the appeal was not followed, Mr Wallington's clients have no Respondent's Answer. He therefore asks for leave that his Skeleton Argument on this appeal be treated as the Respondent's Answer. That application is not opposed. The fourth item, on which we have heard the most extensive argument, concerns the issue whether this Tribunal should proceed to hear the appeal in the absence of extended reasons. We have decided that we should continue to hear this appeal, even though extended reasons have not been provided and will not now ever be provided, since the Tribunal refused, as it was entitled to, a request for extended reasons out of time.

The position under the rules is that Rule 39 of the 1993 Rules, (repeating a similar provision was in substantially that form in the 1980 Rules) provides as follows:

"(1) Failure to comply with any requirements of these Rules shall not invalidate any proceedings unless the Appeal Tribunal otherwise directs.

(2) ...

(3) The powers of the Tribunal under paragraph (2) extend to authorising the institution of an appeal notwithstanding that the period prescribed in rule 3(2) may not have commenced."

In the case of Wolseley Centres v Simmons Ltd [1994] ICR 503, the Appeal Tribunal considered the position of the Appeal Tribunal when there are only before it summary or short form reasons. In the relevant passage at pages 506G-508A the position is analysed in a way which we accept. The combined effect of the two rules mentioned (The reference in that case was to the Rules of the 1980 Rules) is that the Appeal Tribunal has a discretion whether or not to allow an appeal to proceed in the absence of full or extended reasons. It is essential to the exercise of that discretion that it is possible to adjudicate on the appeal without full reasons. There may be cases in which that is not possible, but in some cases it will be possible to do so because it is only on an error of law that an appeal can be adjudicated upon and if there is sufficient material in the summary reasons to raise an issue of law, then it would be possible to exercise its discretion to hear an appeal on summary reasons. The crucial question is whether it is possible in the interests of justice to hear the appeal on the grounds raised in the Notice of Appeal. The interests of justice encompass fairness to both the Appellant and the Respondent. If there is a risk of unfairness to one side or the other in allowing an appeal to proceed on summary reasons only, that would be an important factor against exercising the discretion to hear the appeal.

In this case we have decided to exercise our discretion to hear the appeal on summary reasons. The question which arises for decision is one of the construction of a written agreement. Construction of a written agreement is a question of law on which only limited oral evidence may be admitted. We are told by Mr Wallington that oral evidence was given to the Tribunal but no findings of fact in relation to the oral evidence are contained in the summary reasons. We shall never know what findings the Tribunal would have made on the oral evidence, because they will not now ever provide full reasons. In those circumstances Mr Glennie accepts that he can only argue the case on the material contained in the Tribunal's decision. If nothing is said there relating to the oral evidence, he cannot mount any argument on this appeal in relation to it. He points out that what makes this a case for exercising the discretion is that, in an unusual paragraph in the Industrial Tribunal decision, they stated that Mr Wallington had provided a detailed Skeleton Argument which they adopted in toto, both as to law and as to facts which were not seriously in dispute. We have a copy of that Skeleton Argument in our papers. We are therefore able to see, in greater detail than is set out expressly in the decision, the legal grounds on which the decision was reached.

We shall proceed to hear the appeal on that basis. We exercise our discretion accordingly.