United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR SHANTANU MAJUMDAR (of Counsel) Messrs B P Collins & Co Solicitors 32-38 Station Road Gerrards Cross Buckinghamshire SL9 8EL


 


JUDGE PETER CLARK: Mrs Jackson was employed as a cook at Beechwood Park School from 4th September 1989 until 31st July 996, when she was dismissed on grounds of her age. She was then 61 years old.

On 15th October 1996 she presented a complaint of unfair dismissal. The claim was resisted on the grounds that she had passed the normal retirement age of 60.

That preliminary issue came before the Bedford Industrial Tribunal (Chairman: Mr J Barnes) on 25th April 1997. The tribunal decided that the applicable retirement age in her case was 65, and that accordingly the tribunal had jurisdiction to entertain her complaint of unfair dismissal. Summary reasons for that decision were promulgated on 19th May 1997 ["the first decision"].

The employer, which had been represented by the Bursar before the Industrial Tribunal, took no steps to obtain extended reasons for the tribunal's decision on the preliminary issue with a view to appealing against it. The time limit for such application is, in these circumstances, 21 days from the date of the promulgation of the tribunal's summary reasons. Industrial Tribunals Rules of Procedure, r. 10(4)(c)(ii).

On 17th July the matter returned to the Industrial Tribunal (Chairman: Mr R Postle) for the substantive hearing. On that occasion the tribunal awarded Mrs Jackson £10,000 compensation for unfair dismissal. The tribunal's order read:

"(1) The first Respondent [Beechwood Park School Plc] pay to the Applicant £10,000 in respect of her claim for unfair dismissal, such sum to be paid by 31 July 1997, save that if by 31 July 1997, the first Respondent lodges notice of appeal and notice of application to extend time to appeal to the Employment Appeal Tribunal against the decision on the preliminary issue promulgated on 19 May 1997, such sum shall be paid within 14 days of the Employment Appeal Tribunal's refusal of such application and/or appeal."

The School instructed solicitors who, by a Notice dated 22nd July 1997, appealed against the first decision. That Notice was served together with a copy of the Barnes tribunal summary reasons dated 19th May 1997.

In a letter dated 29th July, it was pointed out by the Employment Appeal Tribunal Registrar that the EAT Rules require that Notices of Appeal must be accompanied by the Industrial Tribunal's extended reasons for the decision appealed against. see r. 3(1)(c) EAT Rules 1993.

On 31st July 1997 the appellants' solicitors wrote to the Industrial Tribunal requesting extended reasons for the first decision. By letter dated 20th August 1997 the Chairman, Mr Barnes, replied, refusing to extend time for providing extended reasons for the first decision. He added that were he minded to grant the request he would not have added anything to the summary reasons dated 19th May.

On 29th August 1997, the Registrar wrote to the appellants' solicitors in these terms:

"The Registrar has directed that you must appeal the refusal of the Chairman to provided extended reasons and then make an application to have your appeal heard on summary reasons only."

To that letter the appellants' solicitors replied, having apparently taken Counsel's advice, on 5th September 1997, in these terms:

"Thank you for your letter of 29 August 1997. We are somewhat bemused by your direction that we must appeal the refusal of the Chairman to provide Extended Reasons prior to having our Appeal heard on Summary Reasons only because, the Chairman of the Tribunal directed:-

"I am not prepared to give Extended Reasons pursuant to this request. Were I minded to do so, I could have nothing to add to the Summary Reasons as already promulgated".

On the basis that it is clear that the Summary Reasons already given by the Tribunal are in fact the equivalent to the Extended Reasons we would be grateful if the Employment Appeal Tribunal would exercise its discretionary power to dispense with the need for Extended Reasons under Rule 39 EAT Rules 1993 as this would be the most sufficient in terms and costs. If the Tribunal needs to hear argument on this point could this not be dealt with at the hearing of the appeal."

There has been no appeal against Mr Barnes' refusal to extend time for the application for extended reasons for the first decision.

It follows that the appellant finds itself today, at this preliminary hearing, in something of a procedural difficulty. Having failed to seek extended reasons for the first decision within time under the Industrial Tribunal Rules, the present Notice of Appeal is defective in that no extended reasons are annexed. Having applied unsuccessfully for extended reasons out of time, there is no further appeal within time against Mr Barnes refusal to extend time. Although it is open to the EAT to consider an appeal based on summary reasons only under r. 39(2) - and we think that it would be appropriate, in view of the Chairman's comments, to do so - that still leaves open the problem that in such circumstances time for appealing then began to run on 19th May 1997 and the present of Notice of Appeal is out of time.

Mr Majumdar has made application to us for an extension of time for appealing. We have taken into account the guidance provided by the former President, Mummery J, in United Arab Emirates v Abdelghafar [1995] ICR 65. An extension of time will only be granted in rare and exceptional cases. In exercising our discretion to extend time we require a good excuse for non-compliance with the ordinary 42 day time limit for appeals.

In this case, not only did the appellant overlook the time limit for applying for extended reasons and the time limit for appeals on the footing that summary reasons for the first decision should stand as extended reasons, their solicitors failed to enter a Notice of Appeal in time against the Chairman's refusal to order extended reasons despite being expressly invited so to do by the Registrar. A successful appeal against that decision would have had the effect of causing time to run from the Chairman's refusal to extend time on 20th August 1997. In those circumstances no time bar to this appeal on the merits would arise.

Mr Majumdar has submitted in terms that it seems a nonsense to appeal against the second decision of Mr Barnes. That is a dangerous line to take when faced with rules of procedure. It may well have preserved the appellants' opportunity to appeal the Industrial Tribunal's first decision.

He is therefore left with his application for an extension of time for appealing against the first decision.

The excuse put forward for not appealing in time is that the appellants were in person and had not appreciated that the first decision was a final decision and would not be revisited at the second Industrial Tribunal hearing. That is not a good excuse in our judgment. Further, the problem has been compounded by the failure of the appellants' lawyers to pursue the remedial step suggested by the Registrar in her letter of 29th August.

In these circumstances we shall not exercise our discretion in favour of allowing the appeal to proceed. It must be dismissed regardless of its merits.