United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D WHITING (Representative)


 


MR JUSTICE MORISON (PRESIDENT): There are two appeals which are before us. We are here to consider whether they raise any arguable point of law fit for hearing before a full panel of the Employment Appeal Tribunal at a full hearing.

The first decision of the Industrial Tribunal against which complaint is made, is to be found in a decision held at London (South) on 30th April 1995 which was sent to the parties on 24th May 1996. We think, having regard to the dates, that it is likely that the hearing took place in 1996 rather than 1995, but our decision is not dependent on that.

The case related to the termination of Mr Baker's employment by Abbeyfield (Clapham) Society Ltd, which is part of the well-known Abbeyfield Society charitable organisation. Homes are provided for the elderly and disadvantaged and the Abbeyfield Society has organised itself on the basis that there will be autonomous charities up and down the country, each of them responsible for particular properties in their locality. Abbeyfield (Clapham) Society Ltd is one such charitable organisation, chaired by and managed by Mr Derek Whiting, the director and Chairman of the Society.

Mr Baker had been employed for a number of years from 1988 until the termination of his employment of 25th August 1995. The tribunal concluded that he had been dismissed and that the reason for his dismissal was the Society's belief that following the applicant's admission to hospital for psychiatric treatment, he was no longer capable of fulfilling satisfactorily the duties of his post as manager/housekeeper of the residential accommodation in question.

The decision of the Industrial Tribunal was sent to the parties on 24th May 1996, as I have indicated, and was accompanied by the leaflet which accompanies every such decision of an Industrial Tribunal. That leaflet described in sufficient terms to enable parties to know where they stand, what steps can be taken to deal with the decision further if they are dissatisfied with it. It is made plain in that literature that if a party wishes to appeal and the decision is in summary decision form, then extended reasons must be asked for, and the time period for asking for extended reasons is 21 days. In this case, therefore, the 21 day period started with 24th May 1996.

Mr Whiting has the advantage of legal experience. He frankly acknowledged to us that he received the leaflet to which I have referred. Instead of seeking to obtain from the Industrial Tribunal extended reasons for the decision, he tried to file with us a Notice of Appeal dated 19th June 1996. In accordance with our Practice and procedure, the Employment Appeal Tribunal communicated with the Society explaining, as was the case, that extended written reasons would be required before an appeal could be entertained. The letter of 9th July points out the requirement for extended reasons, drew attention to the authority which the Employment Appeal Tribunal stated that without extended written reasons an appeal could not properly continue, and upon appeal to the Court of Appeal the view of the Employment Appeal Tribunal was upheld. The attention of the Society was drawn to the time for applying for extended written reasons.

Following that letter, the Director invited the Industrial Tribunal to provide them with extended written reasons, he did that in August 1996, but his application was refused on the grounds that he was applying out of time. Accordingly, he has the right to appeal to us against the tribunal's refusal to give extended reasons for their decision.

In their decision the Industrial Tribunal had said that the reason why the dismissal was unfair was because the Society had failed to adopt a fair procedure in that the settled intention to ask for his resignation or alternatively to dismiss him, was not adequately discussed with him before the letter of dismissal was sent on 14th August 1995. The tribunal went on to say that if they had acted fairly, then the dismissal would have eventuated, and in those circumstances, all the applicant was entitled to was two weeks remuneration, together with a basic award, but it was not possible to fix the amount of either part of an award, because the tribunal did not have sufficient information to enable them to calculate the week's net pay. The matter was therefore adjourned for a compensation hearing.

Mr Whiting was then notified by the Industrial Tribunal in due course of a remedy hearing. He sought to suggest to us that the fact that it was called a "remedy hearing" was going to remedy the defects, as he saw them, in the first decision of the tribunal about which he wished to complain to the Employment Appeal Tribunal.

We have to say that we cannot accept that that is so. It was clear from the face of the first decision what the remedy hearing was going to be about, and as an experienced man used to dealing with legal matters, it seems to us most improbable that he could have thought that a remedy hearing was designed to remedy matters which formed the subject matter or could form the subject matter of an appeal to the Employment Appeal Tribunal.

But in any event, a hearing took place on 4th August 1997 in which the Industrial Tribunal made calculations which had been referred to in their earlier decision. The sum total of those items is £2,255.

On the appeal to us, Mr Whiting made a number of submissions which are set out, helpfully, in a written skeleton argument which we have read, together with a bundle of additional documents numbering 89 pages in all to which our attention has been drawn during the course of extensive argument.

Mr Whiting says, in essence, that there are two fundamental matters which the Industrial Tribunal failed to deal with in the first decision. The first of those two fundamental matters relates to the identity of the respondent, and to the question of the time limit for unfair dismissal applications.

In his IT1 the applicant had identified as the respondent in Box 4, Mr D J Whiting, with his private address, and underneath that, in Box 5 where the form says "Please give the place where you worked or applied for work. if different from above" "Abbeyfield (Clapham) Society Ltd. There is no doubt, therefore, that the IT1 which had been presented in time, named both Mr Whiting and the Society.

We have to say that we were unimpressed by the submission which was made to us that there was some procedural defect in the IT1 which meant that until the IT1 was corrected, time was still continuing to run against the applicant. It seems to us manifestly plain from the terms of the IT1 itself, that there is no merit whatever in the first ground of complaint which is made. The complaint being, in essence, that the Industrial Tribunal failed to deal with this written submission which he had made at the first Industrial Tribunal hearing. In our judgment, it was not necessary for the Industrial Tribunal to deal with it, particularly not in a summary reason decision.

The second ground which formed the subject matter of much debate before us, was Mr Whiting's contention that the Industrial Tribunal completely failed to deal with his second main submission that this was not a dismissal case at all, this was rather a case where a contract of employment had become frustrated as a result of Mr Baker's mental illness.

Whilst we can understand that his frustration that the first tribunal did not deal with it in its summary reasons, we have to say that we are not persuaded that we should deduce from the Industrial Tribunal's silence on that question, the fact that they had not applied their minds to it. Tribunals will provide summary reasons unless they are requested to provide extended reasons in accordance with paragraph 10 of the Schedule 1 to the 1993 Regulations. It seems to us to be essentially unfair to complain about the failure of a tribunal to deal with something in their summary reasoned decision, when the appellants never asked them to give extended reasons within the relevant time period. But secondly, in any event, it seems to us, that there is no real merit in the point which is being made. As we have read the documents helpfully provided to us by Mr Whiting, it is plain that the Society did not treat this as a matter of frustration, but treated this on the basis that it would be appropriate for them to terminate the contract by giving notice. Accordingly, in so far as there may have been a case for saying that the contract was frustrated, that was not the way that it was seen at the relevant time, and not the basis on which the Society had treated the contracted. Accordingly, we consider that the fact that the tribunal did not deal with that aspect does not establish to our satisfaction that we should be so concerned with the decision in summary form that we ought, exceptionally, to allow the appeal against the tribunal's discretion not to extend time for the application to give extended reasons.

There was in addition to that a plea a misere cordiam. The Abbeyfield do provide useful charitable services. Mr Baker was unwell such as to require him to be hospitalised. I can well understand how the Society took the view that he was no longer fit for employment by them. However, the Society must understand that the system of the doing of justice in the Industrial Tribunal and the appeals to the Employment Appeal Tribunal, depends upon parties complying with their obligations under the rules of procedure. We are not satisfied that Mr Whiting has provided us with any credible explanation as to why he did not ask for extended reasons earlier than he did, in accordance with what he must have known to have been the position; nor why he did not seek to reinstate the appeal before us earlier than he did in relation to the refusal to provide extended reasons; and in these circumstances, we do take the view that it would not be appropriate to allow this appeal to go for a full hearing, because we are satisfied that there is no arguable point of law to be made in relation to the first decision. In relation to the second decision, that was no more than carrying out a calculation which had been indicated should be made in the first decision. There are no grounds for thinking that the second decision can be criticised in any way at all. Accordingly, these appeals will be dismissed.