United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR D BROWN (of Counsel) Instructed by Engineering Employees Federation Broadway House Tothill Street London SW1H 9NO


 


MR JUSTICE LINDSAY (PRESIDENT): We have a full hearing here but one which is at a rather technical and procedural level. It is in the matter of Mr A N Meyer v Adwest Steering Ltd. It is necessary to say something of the procedural background of the case. On 20 February 1998 the Tribunal at Reading, ruling upon Mr Meyer's complaint, sent to the parties their unanimous decision that Mr Meyer had not been unfairly dismissed. The dismissal was held to have been by reason of conduct and the Tribunal gave its summary reasons in some 20 lines or so.

1. Against that we look at Rule 10(3) of the Industrial Tribunal Constitution Etc Regulations 1993:

"The Tribunal shall give reasons for its decision in the document signed by the chairman. That document shall contain a statement as to whether the reasons are given in summary or extended form…"

and then it goes on further with paragraphs that we do not immediately need. The document sent to the parties on 20 February 1998 stated that it gave summary reasons and we see Rule 10(3) as having thus been fully satisfied.

2. Rule 10(5) is the next relevant rule; the Clerk shall transmit the documents transferred to in paragraphs 2 and 3 to the Secretary who shall enter them in the Register and shall send a copy of the entry to each of the parties and, where the proceedings were referred to the Tribunal by a Court, to that Court. The Secretary thus has to know the address of each of the parties and that refers one, in practical terms, back to Rule 1(1)(a), which says this:

"Where proceedings are brought by an applicant, they shall be instituted by the Applicant presenting to the Secretary an originating application, which shall be in writing and shall set out -

a) the name and address of the applicant and, if different, an address within the United Kingdom to which he requires notices and documents relating to the proceedings to be sent…"

And then it goes on with b), c) and so on which we do not need for immediate purposes.

3. Now in this case the IT1 had specified an address for Mr Meyer in 12 Wyre Court, Tilehurst, Reading RG1 6FU and there is no suggestion but that Rule 10(5) was satisfied and that the appropriate papers were sent to Mr Meyer at 12 Wyre Court. It is a feature of appeals to the EAT that in ordinary course they are to be accompanied by a copy of the Extended Reasons for the decision appealed against; that is Employment Appeal Tribunal Rule 3(1):

"Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal the following documents:-

…

c) in the case of an appeal from the industrial tribunal, a copy of the extended written reasons for the decision or order of that Tribunal."

4. Thus a litigant who has it in mind to appeal or perhaps to appeal but who has only summary reasons so far given to him needs to have some machinery for getting the Extended Reasons. That is provided in Rule 10(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 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."

5. The time limit for an application for Extended Reasons within 10(4)(c)(ii) expired 21 days after 20 February 1998, namely 13 March 1998. It follows, it would seem, from the fact that the Tribunal gave only summary reasons in the first place that it did not consider this to be a case in which reasons given in summary form would not sufficiently explain the grounds of its decision, because, had that been the case, then 10(4)(d) would have required the reasons to have been in extended form ab initio or, as no doubt we are now obliged to say, from the beginning.
6. On 21 April 1998 Mr Meyer sent a Notice of Appeal to the EAT. On 24 April 1998 the EAT wrote to him telling him he must file Extended Reasons; in other words, they were relying upon the requirement that a necessary part of an appeal is the Extended Reasons for the decision below. What the EAT said in that letter was this:

"… I should explain that in order for the appeal to proceed here you must file a copy of the extended written reasons of that Tribunal in accordance with the requirements of Rule 3(1) of the Employment Appeal Tribunal Rules 1993.

I would draw your attention to the matter William Hill Organisation v A Gravas (EAT/645/88) in which the EAT stated that without extended written reasons an appeal cannot properly continue and upon appeal to the Court of Appeal the view of the EAT was upheld.

The time for applying for the extended written reasons is set out in the explanatory notes sent with the Industrial Tribunal decision. In the event of your request for the extended written reasons being refused, you may make an appeal to the EAT against that refusal. The appeal must be made within 42 days of the date of the refusal letter and be supported by a copy of the refusal letter. The matter will then be set down for a preliminary hearing."

The letter, in fact, did not mention the EAT's practice direction which we will later refer to and which was made well after the William Hill Organisation case, which presumably was in 1988 to judge from its reference number.

7. Of course, leaving aside the want of Extended Reasons, Mr Meyer's Notice of Appeal was not out of time; time had not even begun to run against him because the running of time for appeals is prescribed by EAT Rule 3(2):

"The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision or order of the industrial tribunal were sent to the appellant…"

and then it goes on in a way that we need not draw attention to. So, to that extent time had not even begun to run against Mr Meyer for the making of an appeal to the EAT.

8. On 3 May 1998 Mr Meyer wrote to the Reading Employment Tribunal asking for Extended Reasons. What he said was this:

"Please can you send me the EXTENDED WRITTEN REASONS, in the case of Meyer v Adwest Steering Ltd, because I need to send them to the Employment Appeal Tribunal.

The hearing was on 12/2/98.

Because I did not receive your letter as I had moved to Swindon, at the time, to try and get a job with Honda.

Thanks. Yours [sincerely] A Meyer"

9. It is to be noted that Mr Meyer was not invoking Industrial Tribunal Rule 15 which provides:

"Extension of time

A chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired."

Mr Meyer was not asking for an extension of time in this letter, but he was asking simply for Extended Reasons. The Tribunal answered on 6 May, saying this:

"Thank you for your letter dated 3 May 1998 requesting Extended Reasons. Your letter has been referred to the Chairman who has refused your request as you failed to advise us of your change of address."

10. Had there, in fact, been a request for an extension of time under Rule 15 it might have been difficult to regard that letter of 6 May from the Employment Tribunal otherwise than as a proper exercise of the discretion conferred by Rule 15. Although mentioning a request for Extended Reasons, it does not appear to take into account matters which should not have been taken into account on an application for an extension of time and the one thing that plainly was taken into account, namely that Mr Meyer had left his address for documents relating to proceedings as 12 Wyre Court despite having moved to some other address, cannot be described as something that should not have been taken into account upon a request for an extension of time.
11. So had Mr Meyer in fact by then invoked Rule 15 and had that been the answer, Mr Meyer's position might have been very weak, but the position is made more difficult because on 19 July 1998 the Chairman, through the Regional Secretary, wrote this:

"The Chairman has directed that I write and explain that our letter to the applicant of 6 May 1998 was misleading and should have made clear that the application for Extended Reasons was refused on the grounds that the request was made too late.

The applicant has also failed to keep us advised of his change of address."

12. The Chairman, in so saying, is plainly treating Mr Meyer's request, rightly in our view, as having been a request not for an extension of time under Rule 15 but for Extended Reasons under Rule 10. We say that because it manifestly cannot be a ground for refusing an extension of time, especially where no time limit is fixed for the making of an application for an extension of time and where as in Rule 15, the application can be made even after an appointed time has expired, that it was made too late. The position is thus that, even today, there has been no application by Mr Meyer for an extension of the time prescribed by Rule 10(4)(c)(ii) for requesting Extended Reasons.
13. We could adjourn this application in order that such an application should now be made, but there is another possibility and that is afforded to us by the Practice Direction, Employment Appeal Tribunal Procedure, No.22 which says this:

"Where a request for extended written reasons has been refused by the industrial tribunal an appellant may appeal against that refusal and may also apply to the EAT to exercise its discretion to hear the appeal on summary reasons only."

14. It has not been argued that that practice direction is ultra vires. It is not clear, looking at the first part of that, how an Appellant can appeal to the EAT against a refusal to supply Extended Reasons, as the first part of that suggests if, within EAT Rule 3(1)(c), an appeal requires the lodging of a copy of the Extended Reasons, but that is a conundrum which we will leave to a later decision. Here it is plain, as we pointed out earlier, that the Tribunal did not consider that its reasons in summary form did not sufficiently explain the grounds for the decision – see Rule 10(4)(d) - and it might thus be thought that it would not be unfair for us simply to proceed on the basis that the case can go forward on summary reasons only.
15. However, as Mr Damien Brown helpfully points out on behalf of the Respondent, the summary reasons here were very summary; it is not a question of their being two or three lines, but matters are not at all fully explained and we do fear that if the matter went forward on the basis of the summary reasons standing as sufficient, even if accompanied by Chairman's notes, they would be probably be found insufficient as a fair basis of an appeal. Indeed, given the choice between, on the one hand, Mr Meyer being allowed an adjournment today in order that he can ask for an extension of time under Rule 15, or alternatively, us directing that the matter should go forward on summary reasons only, Mr Damien Brown prefers, very much as the lesser of two evils, that Mr Meyer should be enabled to ask for an extension of time under Rule 15.
16. This is an odd area in that, unlike the position in civil litigation under the old rules of the Supreme Court where, under Order 59 Rule 14(2)(a), an application for leave to appeal out of time was automatically treated as including an application for an extension of time, there is no corresponding rule in the EAT or IT rules. The rules in this area are undoubtedly unsatisfactory and the ET rules do not usefully dovetail with the EAT rules. We hold that this is a case in which the better course would be to give an adjournment to Mr Meyer in order that, under Rule 15, he can ask that he be granted an extension of time in which to ask for Extended Reasons. Whether he can make out a case for that on the merits may be doubted. Mr Brown points out a number of defects that the Respondents will, no doubt, wish to draw to the Tribunal's attention but that is not a matter for us. We are simply asking ourselves whether an adjournment for such a purpose would be an appropriate way of dealing with the matter. We see that it is.
17. We should add that after the 9 July letter (which, after all, was the second explanation by the Employment Tribunal of what had been in its mind and which itself corrected the first version) there was, unusually as we would see it, later correspondence with the Respondent's solicitors not directly copied to the Applicant, Mr Meyer, in which yet further versions of what had been in the Chairman's mind are put forward. This does not seem to us a satisfactory way of proceeding and in any case raises the question of just how many bites of the cherry a Chairman is entitled to have before one can take any given version as being what was truly in his mind at the time. It seems to us appropriate, given the terms of the letter of 19 July to Mr Meyer which says that the earlier letter should have made clear that the application for Extended Reasons was refused on the grounds that the request was made too late, that that letter should be regarded as definitive at any rate, so far as Mr Meyer is concerned. Thus we have not attached any great weight to the later correspondence with the Respondent's solicitors. Accordingly, what we do is simply adjourn this full hearing in order that within a short interval Mr Meyer can make application under Rule 15 for an extension of time in which to ask for Extended Reasons. If he has not lodged it with the Employment Tribunal within 14 days after receiving a transcript of this judgment, then the matter can be restored by the Respondent to the EAT, and, if that has become the case, the Respondent will be in a strong position to ask for the matter simply to be struck out.
18. Mr Brown is concerned that the application under Rule 15 to the Employment Tribunal should not only be restricted as to the time within which it is to be made but that the reasons which Mr Meyer is going to rely on shall not be left shapeless. It is difficult for us to prescribe exactly what Mr Meyer can and cannot say on an application which will not be in front of us, but it must be right that he shall concentrate on the reasons why he failed to give notice of his change of address and what the practical consequences of that failure were. It is not for us to make out his case for him. He will obviously not have an easy task but it is not for us to anticipate further than that.
19. Accordingly, we direct the matter to be adjourned. We give liberty to restore to the Respondents if there has not been a timely application by Mr Meyer as we have indicated, but otherwise we shall simply adjourn the matter for the reason that we have given.