United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 998_94_0702

Appeal No. EAT/998/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7 February 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS R CHAPMAN

MRS T MARSLAND

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SIGNS & LABELS LTD          APPELLANTS

MR D I WALLACE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR I LITTLE

(of Counsel)

Chaffe Street

Brook House

70 Spring Gardens

Manchester M2 2BQ


 


MR JUSTICE MUMMERY (PRESIDENT): This is an unusual appeal and has been listed as a preliminary hearing to determine whether there is any arguable point of law raised in it.

The appeal is against an interlocutory order made by the Chairman of the Industrial Tribunal at Manchester on 5 September 1994. He refused to extend the time period prescribed by Rule 10 of the Industrial Tribunals (Constitution and Rules of Procedures) Regulations 1993 in order to treat the request for extended reasons made by the Respondents, Signs & Labels Ltd, for the Tribunal's decision of 26 May 1994 as having been received in time. It followed that he also refused to provide the extended reasons for that decision.

The background to the decision is that Mr Wallace, the Applicant in the proceedings, presented an originating application to the Industrial Tribunal on 15 December 1993, complaining of unfair dismissal from his position as a print manager employed by Signs & Labels Ltd. He complained that he had been dismissed from that position for alleged gross misconduct. Allegations had been made against him that he had threatened employees under his control, behaved badly and adopted an inappropriate attitude; allegations which he, for the most part, denied.

The claim was contested by his employers in the notice of appearance dated 1 February 1994. The employers denied that he was unfairly dismissed. Their case was that he was dismissed for gross misconduct in the form of personal threats of violence towards employees and other unacceptable behaviour, as detailed in the IT3. They contend that those allegations were put to Mr Wallace. Admissions were made and, in view of the admissions and the overwhelming evidence as to the foundation of other allegations, he was dismissed for gross misconduct and informed of his right of appeal.

The case came before the Industrial Tribunal in Manchester on 26 May. Reasons in summary form were sent to the parties on 8 June, stating that the Tribunal had unanimously decided that the Respondents had unfairly dismissed Mr Wallace.

The main basis of the decision that he was unfairly dismissed was that the allegations against him had not been reasonably investigated. The Tribunal also concluded that he had not caused or contributed to his own dismissal and stated that:

"We were further satisfied that if the allegations had been investigated as any reasonable employer would have done in the circumstances ... it was probable that the applicant would not have been dismissed."

Under the 1993 Rules of the Employment Appeal Tribunal, Signs and Labels had 42 days from the date on which extended reasons of the decision had been sent to them in which to appeal. That is Rule 3(2). A notice of appeal settled by Counsel was received in the Employment Appeal Tribunal on 20 July 1994, but it was not accompanied by a copy of the extended written reasons for the decision of the Industrial Tribunal, as required by Rule 3(1)(c). A copy of those extended written reasons is necessary for the institution of the view, unless that requirement is waived or dispensed with under Rule 39(2).

On 25 July a letter was sent by the Employment Appeal Tribunal's Deputy Registrar to the solicitors for Signs & Labels Ltd, saying:

"The Industrial Tribunal decision you have submitted in support of your appeal is only in summary form, and I should explain that in order for the appeal to proceed here you must file a copy of the extended written reasons of that Tribunal, in accordance with the requirements of Rule 3(1) of the Employment Appeal Tribunal Rules 1993."

The solicitors' attention was drawn to the decision of this Tribunal in William Hill Organisation v A Gavas (EAT/645/88), which was upheld in the Court of Appeal.

A request was then sent by the solicitors to the Regional Office of the Industrial Tribunal asking the Tribunal to furnish extended reasons. The request was out of time because under the Industrial Tribunals Regulations of 1993, Rule 10, a request for extended reasons must either be made orally at the hearing by a party or must be made in writing by a party after the hearing, either before the summary reasons are sent or within 21 days of the date on which the summary are sent.

In a careful decision the Chairman set out the history of the matter which had led up to the application by the solicitors for Signs & Labels to extend the time for applying for extended reasons. Having referred to the background facts of the relevant correspondence, the Chairman said in paragraph 11:

"There is no dispute that the respondents' application that the Tribunal's reasons for its decision of 26 May 1994 be given in extended form was made outside the time period prescribed by Rule 10. Under the above-mentioned Rules of Procedure I, as a Chairman of the Industrial Tribunals, have a discretion conferred upon me by the Rules to extend that time period and treat such an application as having been made in time."

That is a correct direction. It is a matter of discretion. The exercise of the discretion cannot be faulted on an appeal, which is confined to questions of law, unless it is shown that the Chairman had misdirected himself in principle as to the exercise of his discretion or had exercised it by taking into account irrelevant matters or leaving out of account relevant matters.

In our view, the conclusion of the Chairman in paragraph 12 of his decision, has no legal error in principle or on grounds of what were relevant and irrelevant factors. He said:

"I have carefully considered the application to extend that time period and to give the Tribunal's reasons in extended form. The respondents' solicitors have now accepted that no oral request for extended reasons was made either at the hearing on 26 May 1994 nor at the hearing on 4 July 1994."

The hearing on 4 July 1994 was the remedies hearing.

"I am satisfied that the mere fact that the respondents, through its legal advisers, acted upon a mistaken belief that an oral application for extended reasons had been made at the conclusion of the first hearing are not adequate grounds for me to exercise my discretion and extend the time period. The mere fact that the notice of appeal was prepared on the basis of the grounds set out in the Tribunal's written decision and presented at the Employment Appeal Tribunal within the statutory time limit is, in my opinion, of little relevance in this matter. Solicitors acting for parties before the Industrial Tribunals are required to comply with the statutory Rules which govern the proceedings before Industrial Tribunals. Whilst it may be that little or no prejudice would be occasioned for the applicant if I were to extend the time period and supply the written reasons in extended form that is, in my opinion, also of little relevance. I am satisfied that the respondents' solicitors have not put forward a sufficient reasons as to why I should exercise my powers and treat the application as having been received in time. In these circumstances I refuse to do so and I therefore refuse to provide the reasons in extended form."

In our view, that reasoning cannot be faulted. The fact is that, whatever mistaken impression the legal representatives of Signs & Labels Ltd may have been under after the date of the hearing on 26 May, they knew that the document containing reasons for the decision sent out on 8 June was only in summary form. The reasonable course on the receipt of that document would have been to write at once or within a relatively short time to the Tribunal, asking where the extended reasons were and repeating a request, if one had already been made, for those reasons to be supplied or making such a request for the first time. Neither of those things was done.

In our view, there is no error of law in the decision of the Chairman. There is nothing arguable for the appeal on that matter. We therefore dismiss that appeal.

That leave us in this position: we have before us now a copy of the decision with reasons in summary form and also a copy of a lengthy notice of appeal against that decision.

Mr Little, who appeared for Signs & Labels Ltd, fully appreciated that he cannot proceed with his appeal in the absence of extended written reasons, unless we dispense with that requirement in exercise of our powers under Rule 39(2).

Although the notice of appeal runs to nine main paragraphs, as far as we can see and Mr Little did not try to persuade us to the contrary, the grounds of appeal really constituted a complaint that the Industrial Tribunal had substituted its own opinion on the investigations instead of considering whether the investigation carried out by Signs & Labels Ltd was reasonable in all the circumstances. In concluding the company had failed to conduct such an investigation, as any reasonable employer would have done, the Tribunal came to a perverse conclusion, that is one that no reasonable Tribunal, properly directing itself on the law and the facts, could have come to.

We have been persuaded, reluctantly, that this is a case where we should dispense with the requirement of extended reasons, so that the appeal can proceed to be argued on the merits. We say "reluctantly" because, as was explained in the Employment Appeal Tribunal's decision in Wolesley Centres Ltd v Simmons [1994] ICR 503, the Tribunal rarely regards it as appropriate to dispense with this requirement. The Appeal Tribunal will, in general, only allow an appeal to proceed in the absence of extended reasons, where the summary reasons are, in essence, quite full, so that the matter can be argued on the merits without any injustice.

In this case, the part of the summary reasons, dealing with the Tribunal's conclusion that the allegations had not been reasonably investigated is fairly full for the purpose of dealing with an appeal. The relevant paragraph is paragraph 5.

We add this, however. In our view, it is often difficult to succeed in a claim that there is an error of law by reason of the perversity of the decision and, in most cases, it would be even more difficult to succeed in such a claim where extended reasons have not been provided. In dispensing with the requirement of extended reasons under Rule 39(2) we are not to be taken as encouraging in Signs & Labels Ltd any hopes that they will succeed on this appeal. Whether they succeed or not is a matter for the Tribunal which hears the full appeal, but it is only right that we mention difficulties we anticipate they will encounter as Appellants relying a perversity argument.

For those reasons the orders we make are that (1) we dismiss the appeal against the Chairman's decision refusing to extend time for an application for extended reasons and (2) we dispense with the requirement of extended reasons and direct that this matter may proceed to a full hearing of the appeal on summary reasons only.