United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R PIRANI (Of Counsel) Motor Industry Legal Services 108 Beaufort Street Chelsea SW3 6BU
For the Respondent	NO APPEARANCE OR REPRESENTATION ON BEHALF OF THE RESPONDENT


 


JUDGE CLARK: These appeals by the employer, James Edwards (Chester) Ltd., arise in the following circumstances.

The Respondent employee, Mr Parker, was employed by the Appellant from 3 January 1994 until his dismissal on 14 September 1995. Accordingly he had less than two years continuous service for the purposes of complaining of unfair dismissal.

On 7 December 1995 he presented a complaint to the Central Office of Industrial Tribunals alleging, inter alia, breach of contract, in that although promised that he could enter the company's pension scheme after 12 months employment, that is, in early January 1995, he had not been permitted to do so and had accordingly been deprived of the benefit of the Appellant's contributions on his behalf at the rate of 9.3% per annum of his salary for a period of 8½ months until his dismissal.

His complaint was heard by an Industrial Tribunal sitting at Liverpool on 11 April 1996. That Tribunal upheld his pension loss complaint and awarded him £971.13, representing the sum of the employer's contributions for the relevant period as the Tribunal found.

Summary reasons for that decision were promulgated on 24 April 1996. On 22 May 1996, the Motor Industry Legal Services [MILS], the Appellant's representatives, wrote to the Liverpool Industrial Tribunal in these terms:

"We are instructed by our above Client to institute an appeal against the finding of the Tribunal in this case and we would therefore be grateful for the Chairman's notes insofar as they relate to the evidence concerning the Applicant's pension and the document referred to in the judgment of the Tribunal as "R21" which again pertained to the Applicant's pension entitlements.

We thank you for your assistance in this matter and look forward to hearing from you shortly."

On 23 May MILS lodged a Notice of Appeal (the first appeal) in essence contending that the Tribunal's decision was perverse. A copy of the Tribunal's Summary Reasons was served with that Notice. On 7 June the Registrar wrote to MILS, pointing out that the Notice of Appeal was defective, in that Extended Reasons for the Tribunal's decision was not attached, contrary to Rule 3(1)(c) of the EAT Rules 1993.

On 11 June, MILS wrote to the Tribunal asking specifically for Extended Reasons. On 12 June the Tribunal sent a reply stating that the Chairman of the original Industrial Tribunal "will endeavour to complete your request as soon as is convenient." On 8 July the Tribunal sent a substantive reply to the Appellant's request in the following terms:

".... The Chairman of the Tribunal has now had the opportunity to consider his notes of evidence and the file. Before he can provide full written reasons there are two matters to deal with.

...........

2. Your letter of 11 June 1996 which is the request for full written reasons is well out of time. The covering notes sent with the decision clearly state that the request for written reasons must be made within 21 days of the date on which the decision was sent to you. This date is stamped on the decision document 15 March 1996. [That date is inaccurate, the correct date is 24 April 1996.] Please provide full reasons as to why the application was out of time and as to the basis upon which you consider the tribunal ought to extend the time period to provide the written reasons. The Tribunal Chairman will then consider the matter further."

On 22 July MILS wrote stating that the covering notes were not sent with the decision and that they were unaware of the 21-day limit. They asked that the delay in applying be excused and said that the Extended Reasons were required in order to facilitate an appeal to the Employment Appeals [sic] Tribunal.

On 5 August 1996 the Tribunal replied in these terms:

"Your organisation frequently represents parties before this Tribunal and no doubt advises on appeals. You also receive many Decisions of the Industrial Tribunal that contain copies of the appeal rules. Even if, as you suggest, the appeal notes were not enclosed on this occasion the 21 day rule is well known and experienced practitioners are well aware of it.

Your letter dated 22 July 1996 does not provide proper reason for the exercise of the Tribunal's discretion to extend the time period for extended written reasons.

Your application for such is therefore refused."

On 13 August MILS wrote to the Tribunal. That letter appears to suggest that the request was originally made by letter of 22 May 1996, we shall return to that point later in this judgment. The reason for the delay was said to be the need to take instructions from the client and obtain relevant documentation. MILS indicated that they wished to appeal the Chairman's decision not to provide Extended Reasons to the Industrial Tribunal itself.

By a letter dated 4 September the Industrial Tribunal pointed out that an appeal against the Chairman's decision not to provide Extended Reasons lay to the Employment Appeal Tribunal, not the Industrial Tribunal. Further, Mr Pirani tells us on instructions, that subsequently the Appellant applied for a review of the Chairman's "Decision" to refuse to extend time for the application for Extended Reasons. Mr Pirani accepts that in fact this was an order of the Chairman, not a decision within the meaning of Regulation 2(2) of The Industrial Tribunals Regulations 1993 and accordingly was not susceptible to review.

On 10 September the Appellant entered a second Notice of Appeal (the second appeal) against the Chairman's refusal to provide Extended Reasons out of time. At a Preliminary Hearing held on 7 February 1997 the second appeal was allowed to proceed to a full hearing before the Employment Appeal Tribunal, and that is the appeal which is before us today.

The Second Appeal

Mr Pirani has referred us to Rule 10(4) of The Industrial Tribunal Rules of Procedure 1993 contained in Schedule 1 which reads:

"(4) The reasons for the decision of the tribunal shall be given in summary form except where–

........

(b) a request that the reasons be given in extended form is made orally at the hearing by a party;

(c) such a request is made in writing by a party after the hearing either–

(i) before any document recording the reasons in summary form is sent to the parties, or

(ii) within 21 days of the date on which that document was sent to the parties; or

(d) the tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision;

and in those circumstances the reasons shall be given in extended form."

His argument runs as follows:

(1) Summary Reasons for the Tribunal's decision were promulgated on 24 April 1996. No earlier requests for Extended Reasons having been made, the 21-day time limit for applying Extended Reasons under Rule 10(4)(c)(ii) expired on 15 May. The letter of 22 May, seven days later, implicitly asked for Extended Reasons because it indicated that an appeal would be instituted. We reject that submission. The letter was a request for the Chairman's Notes and not Extended Reasons. No application for Extended Reasons was made until the Appellant's letter of 11 July, after the Employment Appeal Tribunal had pointed out the need for Extended Reasons to be lodged with the Notice of Appeal by a letter dated 7 July.

Accordingly, the application was made forty-seven days out of time - 15th May to 11 July.

(2) Rule 10(4)(d) is material. We do not consider that it is. That sub-rule simply provides that if the Industrial Tribunal considers that it cannot sufficiently explain its reasoning for its decision in summary form, it may deliver Extended Reasons instead of Summary Reasons. That is not this case.

(3) Turning to the Chairman's Order under appeal, that is the refusal to grant an extension of time for the application for Extended Reasons, Mr Pirani submits that the Chairman erred in paragraph 2 of the letter of 5 August, in finding that the Appellant had not provided proper reasons for the exercise of the Tribunal's discretion in favour of extending time. The Appellant had advanced two reasons for the delay in applying; the first was that Extended Reasons were needed for facilitating an appeal, the second was that the Appellant's advisers were unaware of the 21-day rule (Rule 10(4)(c)(ii)) and had not received the accompanying letter with the Tribunal's Summary Reasons informing them of that provision.

We reject that submission. In our judgement the words "proper reasons" in this context import "good and sufficient reasons". It seems to us that the reasons advanced by the Appellant could be rejected by the Chairman in the permissible exercise of his discretion. Virtually every application for Extended Reasons is for the purpose of an appeal. Ignorance of the rules, particularly by a professional adviser, is no excuse for non-compliance with those rules.

In these circumstances we can find no grounds in law for interfering with the Chairman's exercise of discretion. It was not Wednesbury unreasonable. (See Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778, 782 per Mr Justice Arnold.)

Mr Pirani submitted, and we accept, that having dismissed the second appeal it is not appropriate for us today to go on to deal with any application under Rule 39(2) of the EAT Rules on the part of the Appellant for the first appeal to proceed on the basis of Summary Reasons only. (See William Hill v Gavas [1990] IRLR 488; Wolseley Centres Ltd v Simmons [1994] ICR 503.)

We shall therefore direct that the first appeal now be listed for an ex-parte Preliminary Hearing to determine whether it should be allowed to proceed to a full hearing, or whether it should be dismissed at the Preliminary Hearing stage.

At that Preliminary Hearing the EAT will consider:

(1) Whether it is appropriate for the matter to proceed on the basis of Summary Reasons only, and, if so,

(2) Whether, on the merits, the first appeal raises any arguable point of law to go to a full appeal hearing inter-partes.