United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C TAYLOR (IN PERSON)
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


JUDGE PETER CLARK: The Appellant, Mr Taylor, commenced these proceedings before the Employment Tribunal by an Originating Application presented on the 13^th January 1998, in which he alleged that he had been unfairly dismissed by his former employers Connex (South East). He was employed by that Respondent and its predecessor as a train driver from 3 December 1979 until his dismissal in January 1998. The claim was resisted.

1. The hearing of the complaint was held by a full Employment Tribunal sitting at Brighton on 10^th March 1998. On that occasion the Appellant was represented by a Citizens Advice Bureau worker, Mr Mountford.
2. By a decision promulgated with summary reasons on 8^th April 1998, the claim was dismissed. (The summary decision).
3. By Notice of Appeal on 14^th October 1998, the Appellant sought to appeal against the substantive decision (the first appeal).
4. It was pointed out, by letter from Deputy Registrar to the Appellant dated 30^th October 1998, that Rule 3(1) of the Employment Appeal Tribunal Rules of Procedure required the Appellant to file a copy of the Employment Tribunal's Extended Written Reasons for the decision appealed against.
5. Accordingly, the Appellant made application to the Employment Tribunal Chairman, Mr M J Davey, by letter dated 17^th November 1998, for Extended Written Reasons for the Tribunal's decision. That application was refused by letter dated 23^rd November 1998 on the ground that the application was made out of time. The time for making such application is by virtue of rule 10(4)(c) of Employment Tribunal Rules of Procedure, within 21 days of the date on which the summary decision was promulgated (the reasons order).
6. Against the reasons order the Appellant brought a further appeal (the second appeal) by letter dated 27^th December 1998.
7. On 4^th May 1999 at a Preliminary Hearing held before a division presided over by Judge Byrt QC, leave was given for the second appeal to proceed to this full hearing. There is no judgement before us to explain the basis on which the matter was allowed to proceed.
8. It seems to us that 2 potential questions arise for determination in this appeal.

(1) whether the Chairman erred in law in refusing to issue Extended Written Reasons, notwithstanding that the Application was out of time. If so, the second appeal succeeds, but if not,

(2) whether the first appeal can proceed on the basis of the summary reasons only in accordance with rule 39(2) of the Employment Appeal Tribunal Rules.

9. Dealing with the first question, it is to be noted that the reasons order does not fall within the definition of a "decision" under regulation 2 of the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 1993. Accordingly, there is no obligation on the Chairman to given extended reasons for that order under rule 10. We must therefore deal with this appeal on the basis of the Chairman's letter dated 23 November 1998.
10. Mr Taylor contends that his reason for not applying for Extended Written Reasons for the original decision promulgated on the 8^th April 1998 was that he did not receive a copy of the summary decision until 14^th September 1998. However, on examination what he means by that is that he did not receive a copy of the summary decision from his former representative until that date. He tells us that he made clear to his adviser at the original hearing on 10^th March 1998 that he intended to appeal. He was then advised that he needed the Tribunal's written reasons before appealing. However, it seems that he did not chase up his representative to discover whether those reasons had been provided until September 1998.
11. The summary decision was sent to his named representative, because it was contained in a bundle of papers forwarded to the Appellant on the 14^th September 1998 from the Citizens Advice Bureau. That is good service under Rule 20 of the Employment Tribunal Rules of Procedure. In our judgement, it is no answer to the delay in requesting Extended Written Reasons that the matter was left with a party's nominated representative. In these circumstances, bearing in mind the length of the delay, we can see no grounds in law for interfering with the Chairman's exercise of discretion in refusing to extend time under rule 15 for providing extended written reasons on an application made well out of time. Accordingly, we must dismiss the second appeal.
12. The Court of Appeal recognised that it is open to the Employment Appeal Tribunal to entertain an appeal based on summary reasons only in an appropriate case, exercising the power contained in Rule 39(2) of the Employment Appeal Tribunal Rules see William Hill Organisation v A Gravas (1990) IRLR 488. An example of that course being taken is to be found in Wolesley Centres Limited v Simmons (1994) ICR 503.
13. However, it is the substance of the first appeal that in that summary decision the Employment Tribunal failed to consider points which were raised on behalf of the Appellant below which he now wishes to raise in that appeal. It follows, in our view, that the summary reasons are not adequate for the purposes of adjudicating on the first potential appeal. In these circumstances we feel unable to exercise our discretion in favour of the Appellant under rule 39(2) and accordingly, the first appeal must also be dismissed at this stage.
14. Application for leave to appeal to the Court of Appeal refused.