United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E GRIMSTEAD (Managing Director) MESSRS CLARKE & NORRIS Solicitors 1 River Chambers High Street Romford RM1 1LC


 


HIS HONOUR JUDGE CLARK: The history of this matter is that from 16 June 1997 until 31 March 1998 the Applicant, Mr Brentnall, was employed by the Respondent, E A Grimstead & Son Limited, as General Manager.

Following termination of his employment he presented an Originating Application to the Employment Tribunals on 13 May 1998, complaining of unauthorised deductions from wages. Specifically he claimed outstanding holiday pay and commission allegedly due but unpaid.

The Respondent resisted the claim on the grounds that in various respects the Applicant had been negligent in the discharge of his duties, putting the Respondent to considerable expense.

The complaint was heard by a Chairman, Mr S M Duncan, sitting alone at Stratford on 27 July and 5 October 1998. By a decision (the original decision) with summary reasons promulgated on 13 October 1998 the Chairman upheld the complaint and awarded the Applicant a total of £2,542.38, representing net holiday pay and commission which the Chairman found due and unpaid. Holiday pay and commission which is payable to an employee is included in the definition of wages contrary to Mr Grimstead's submission. See Employment Rights Act 1996 section 27(1)(a). Failure to pay wages amounts to a deduction within the meaning of section 13(1) of that Act. Delaney v Staples (1991) IRLR 112. A deduction from wages is unlawful absent written consent to that deduction by the employee. Section 13(1).

On 21 October 1998 the Respondent made application for a review of the original decision. That application was refused by the Chairman by letter dated 17 November 1998 on the grounds that it had no reasonable prospect of success. Employment Tribunal Rules of Procedure, Rule 11(5).

By letter dated 24 November 1998 the Respondent appealed to this Employment Appeal Tribunal against the original decision, enclosing a copy of the Chairman's summary reasons only (the first appeal). Rule 3(1)(c) of the EAT Rules requires an Appellant to serve with his Notice of Appeal a copy of the Employment Tribunal's decision with Extended Reasons against which the appeal is brought.

By letter dated 15 December the Deputy Registrar pointed out the need for Extended Written Reasons.

By letter of 6 January 1999 the Respondent applied to the Chairman for Extended Reasons. That request was refused by letter dated 7 January on the grounds that the application was out of time and the Chairman was not prepared to extend time in the circumstances of the case. The time limit for making application for Extended Reasons under Rule 10(4)(c)(ii) of the Employment Tribunal Rules is 21 days from the date of promulgation of the decision with summary reasons, here 13 October 1998. The discretion to extend time is afforded by Rule 15. A further request by the Respondent for Extended Reasons was also refused. By letter dated 19 January 1999 the Respondent appealed against the Chairman's refusal to provide Extended Reasons (the second appeal).

This is a preliminary hearing held to determine whether the second appeal raises any arguable point of law to go to a full appeal hearing.

Employment Tribunals have a wide discretion as to whether or not to enlarge time for doing any act under the Rules. Mr Grimstead has been unable to point to any error of law in the Chairman's exercise of discretion in refusing to provide Extended Reasons.

Accordingly we see no grounds in law for interfering with that refusal by the Chairman to provide Extended Reasons, and the second appeal on the face of it, must fail.

We bear in mind the Tribunal has a discretion to dispense with the need for Extended Written Reasons where the summary reasons provided form an adequate basis for adjudicating on the substantive appeal. EAT Rules Rule 39(2). See William Hill v Gavas (1990) IRLR 488. Wolesley Centres Ltd v Simmons (1994) ICR 503.

Having considered the Chairman's summary reasons and the points which Mr Grimstead tells us he wishes to raise in the first appeal, we are not satisfied that this is an appropriate case in which to exercise our discretion in permitting the first appeal to proceed on the basis of summary reasons only.

It therefore follows that both these appeals must be dismissed.