United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P BIBBY Free Representation Unit Room 140, 1st floor 49-51 Bedford Row London WC1R 4LR
For the Respondents	MR R BENNETT Representative Bennett Business Services 15 Gulls Way Heswall Wirral L60 9JG


 


JUDGE BYRT QC: This is an appeal against a decision of the Industrial Tribunal sitting at London (North) on 26 August 1993. The decision was promulgated on 9 September 1993. In that decision they decided unanimously that the Applicant, now the Appellant before us, had been unfairly dismissed. It made an award for compensation but said that by reason of her contributory conduct 10 percent should be deducted from that award.

The Appellant now appeals on the basis that the Industrial Tribunal failed to award her a claim she made for an on-going loss of wage she suffered as a result of taking other employment which was less lucrative. It is agreed between the parties that ordinarily this is a claim in law that any Applicant is entitled to.

Following the decision being handed down on 9 September the Appellant applied for a review. It is uncertain as to what date she made such an application or, indeed, the grounds upon which she did so because the application itself seems to have been lost and the Appellant herself has not retained a copy, but it would seem that it was about 19 September, as far as anybody can judge.

When the Chairman considered the application she refused it and did so on the basis which was set out in document No. 21 of the EAT bundle. Her reasons for refusing were:

"The Applicant was compensated for her loss of employment by the Respondent.. Any subsequent loss of employment by termination by a different employer cannot be compensated by the original employer, the Respondent.

The Applicant has been compensated for all the loss she suffered as a result of her unfair dismissal by the Respondent."

When the Appellant learned of those reasons for the refusal of the Chairman to grant a review, she made an application for extended reasons because it was her intention to appeal the decision. She dealt with that matter promptly, that is within the same or the next day because by 15 October the Chairman had considered the application and decided that it should be refused. The learned Chairman refused it, first, on the basis that the application for extended reasons was outside the 21-day period within which she had to make an application as required by rule 9(5)(d) of the first schedule of the Tribunal Rules. The second reason why she refused the application was because, she said, the Applicant had, in fact, succeeded in her application. Plainly, she had succeeded on the issue of liability but she had not succeeded in her claim on quantum. The third reason given for the Chairman's refusal was that there was no requirement of natural justice that the extended reasons should be given. Once more, the Appellant applied for a review of that decision and this was refused on 27 October.

The absence of extended reasons has caused a problem for the Appellant because any appeal that proceeds without extended reasons falls within rule 3 of the Employment Appeal Tribunal procedural rules which says that extended reasons must be obtained. There is, however, a let out in the provisions of rule 39 which says that this Tribunal may dispense with any requirement where it is desirable to do so in the interests of justice. The application of that rule to an Appellant's failure to obtain extended reasons has been the subject of a number of judicial decisions. Two seem to us to be apposite, in this instance. The first is Wolesley Centres Ltd v Simmons [1994] ICR 502 which stresses there is no general principle to the effect that an appeal without extended reasons is non-justiciable. It depends upon the circumstances of the individual case. The other decision which has been drawn to our attention, an unreported decision from 1995, is Cobrawatch Ltd v Finn (EAT/1016/95) which says that notwithstanding the general rule that extended reasons have to be obtained, an exception which enables an appeal to proceed on the basis of summary reasons, exists where it is possible to do justice to the appeal on the summary reasons. Mr Bibby, who has argued this appeal on behalf of the Appellant, says that in effect the principles which govern the question whether this Tribunal should go ahead on the basis on summary rules can be reduced to two particular propositions. The first is, can justice be done on the basis of the summary reasons and, secondly, does the justice of the case require that we should do so?

Before making a decision on that particular point, it seems to us relevant that first we should look at the summary reasons themselves to see whether it is possible to deduce an error of law from looking at that summary. Mr Bibby, in his submissions, says the first point which is striking is that the summary of reasons is silent about there being any claim in respect of a continuing loss of wage. The summary of reasons refers to a basic award. It refers to the loss of wages the Appellant suffered while she was unemployed for a period of five weeks immediately following her dismissal. It refers to loss of statutory rights and makes an award in respect of each of those headings but it says nothing about a continuing loss thereafter.

It is accepted by Mr Bennett, who has argued all points that are possible on behalf of the Respondents in this matter, that there was evidence before the Industrial Tribunal that this lady had suffered a continuing loss following the expiry of the five-week period. He also accepts as a principle of law, that prima facie an Applicant who has suffered a loss through having to accept less lucrative remuneration from alternative employment, is entitled to recover that loss as part of the general award for compensation to which she is entitled. Yet in argument Mr Bennett has, in our view, not been able to give any explanation as to why the Industrial Tribunal found that the Appellant should not be entitled to recover under this particular heading. He endeavoured to come up with an idea or two as to what might have been in the minds of the Industrial Tribunal but we are of the view that those submissions were somewhat fanciful and serve only to illustrate the point Mr Bibby makes that there are no realistic reasons why this Appellant should be denied her claim under this particular heading. Mr Bibby further says the fact that the Industrial Tribunal has not dealt with the matter demonstrates that there must have been an error of law invalidating the Industrial Tribunal's decision. Taking all those factors into account, we agree with the submission made by Mr Bibby that the Industrial Tribunal must have been fallen into error when they failed to canvas and make an award under this particular heading.

So we come back to the original problem that this Appellant faced, namely, that she had no extended reasons. As a result of our earlier observations about the error of law contained in the Industrial Tribunal's decision, we find no difficulty in pin-pointing this point from the summary reasons, and so the first of the two principles which had to be established for allowing a case to go ahead on the summary of reasons, is satisfied.

The next question is whether doing so meets the justice of the case. We think so, and in so thinking take into account a number of factors. First, the Appellant raised this very issue at the time of the Industrial Tribunal hearing. Second, within a very short time of receiving the decision of the Industrial Tribunal on 9 September, she made her application for a review, probably within ten days or thereabouts. As soon as she had the learned Chairman's decision refusing that review, that same day or the next she made an application for extended reasons intending to make an appeal. Bearing in mind that she was a litigant in person throughout, we take the view that she has acted commendably promptly and with her commonsense.

We are mindful of the fact that the Industrial Tribunal Chairman was exercising a discretion which is hers to exercise when in the first instance she refused the extended reasons but we are satisfied that one of the reasons she cited for refusing the request, namely, the fact that the Applicant had been successful in her application is not right. And we think that that may have strongly influenced her when coming to her decision to refuse the application.

In all the circumstances, we feel that it would be right and proper and meet the justice of the case if we allow this appeal to proceed, notwithstanding the fact that there were only summary reasons of the original decision and, accordingly, we do so.

Those observations cover all points in this appeal and it is necessary, therefore, to allow the appeal. We think that this matter now must be remitted to the Industrial Tribunal, to a differently constituted Tribunal, particularly because the Chairman of the original Industrial Tribunal has now retired. It must return to a fresh Tribunal for the assessment of the continuing loss, if there be such a loss, for the period of time following 15 August 1992.