United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S OWEN (of Counsel) Messrs Granville West Chivers & Morgan Solicitors High Street Chambers Newbridge Gwent NP1 4XB


 


JUDGE PETER CLARK: Mr Williams commenced employment in the NHS in 1974 and at the end of his employment worked as a nurse on Ward B1 at the Pen-y-fal Hospital, Abergavenny, then administered by the respondent Trust.

His employment terminated due to dismissal by reason of redundancy on 22nd June 1995. The hospital was closed.

He presented a complaint of unfair dismissal to an Industrial Tribunal. In his Originating Application he contended that he had been unfairly selected for redundancy, and that he had been victimised by nurse managers.

The matter came for hearing before the Cardiff Industrial Tribunal on 23rd-25th April 1996. The applicant was represented by Ms Owen of Counsel under the Free Representation Unit scheme. Following that three day hearing the tribunal dismissed the complaint, and gave their written reasons in summary form on 2nd May 1996. It appears that no application was made for extended reasons during the hearing, nor within 21 days of the date of the summary reasons as required by Rule 10(4)(c)(ii) of the Industrial Tribunal Rules of Procedure 1993. Ms Owen has explained to us today, with refreshing candour, that she asked the Industrial Tribunal clerk for extended reasons after the tribunal had risen at the end of the case. She was told that they would be provided.

However, the written reasons supplied were headed 'Summary Reasons'. Mr Williams promptly forwarded them to Ms Owen for advice. She overlooked the fact that extended reasons must be sought within 21 days of the summary reasons being promulgated. She made no application on his behalf to the tribunal for extended reasons within that period.

She accepts that this was her fault, and that a party is bound by any errors on the part of his representative. In this connection we would refer to Kumchyk v Derby County Council [1978] ICR 1116, 1123 D-E

On 11th June 1996 solicitors instructed by the applicant, lodged a Notice of Appeal to this tribunal. Rule 3(1)(c) of the Employment Appeal Tribunal Rules 1993 provides that a copy of the Industrial Tribunal's extended reasons shall accompany a Notice of Appeal. None had been obtained and thus none accompanied the Notice of Appeal.

This omission was pointed out to the applicant's solicitors by a letter from the Deputy Registrar dated 21st June. Accordingly those solicitors applied to the Industrial Tribunal for extended reasons. The application was refused on the grounds that the application was out of time. See the Industrial Tribunal's letter dated 25th June 1996. The applicant then appealed to this tribunal against that refusal by a Notice dated 28th June 1996.

This is a preliminary hearing held to determine whether either or both of the appeals raises an arguable point of law sufficient to go forward to a full hearing.

In our judgment there are no grounds for interfering with the tribunal's exercise of discretion in refusing to extend time for applying for extended reasons, and indeed none were specifically advanced by Ms Owen. Accordingly the second appeal in time is dismissed.

However that is not the end of the matter. Rule 39(2) of the Employment Appeal Rules permits us to waive the strict requirements of Rule 3(1)(c) in an appropriate case so as to allow the appeal to proceed on summary reasons only. The power will only be exercised sparingly. See William Hill Organisation v Gavas [1990] IRLR 488. An example of the application of this exceptional power is to be found in Wolseley Centers Ltd v Simmons [1994] ICR 503, where it was held on an appeal on compensation, that the tribunal's summary reasons were sufficiently full to allow the Employment Appeal Tribunal to adjudicate on the point in issue, particularly where full reasons had been given for the liability decision in that case.

In our view the same cannot be said here. The tribunal quite properly has compressed into what are really "bullet points", their summary reasons. We have some idea of the issues of fact and law which were canvassed below from the duration of the hearing and the detailed grounds of resistance in the respondent's Notice of Appearance.

The grounds of appeal in the first, substantive Notice of Appeal before us are vague and imprecise; they do not raise a crisp point of law for which limited reasons might suffice.

Ms Owen wishes to direct her substantive appeal to the issue of the applicant's selection for dismissal. That is dealt with very shortly by the tribunal in paragraph 3 of their summary reasons in this way:

"[The respondents] selected on the basis of a genuine and reasonable assessment of the merits of each candidate."

In our view that is not a proper basis on which we can entertain the substantive appeal. The reasons are simply not sufficient to allow us to apply the proviso in Rule 39(2). Thus with considerable regret we are driven to conclude that both these appeals must be dismissed.