United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	THE APPELLANTS NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK:

1. The applicant, Mr Rogerson was employed by the respondents as an agricultural worker at their farm at Driffield, East Yorkshire from 1st April 1991 until 21st November 1998. Following termination of that employment he presented an Originating Application to the Leeds Employment Tribunal on 8th January 1999 complaining of unfair dismissal and unauthorised deductions from his wages. The claim was resisted. By their Notice of Appearance the respondents denied that he was dismissed; he had resigned.
2. The matter came before an Employment Tribunal chaired by Mr J M Q Hepworth sitting at Leeds on 19th March 1999. By a decision promulgated with summary reasons on 13th April 1999 the tribunal upheld that applicant's claim of unfair dismissal, but dismissed the former Wages Act claim. The question of remedies was adjourned.
3. The remedies hearing took place before the same tribunal on 17th June 1999. On this occasion the respondent was represented by a solicitor, Mr Steen of Messrs Gosschalks. At the liability hearing the respondent had appeared in person.
4. By a second decision with summary reasons promulgated on 12th July 1999 the tribunal awarded the applicant a total sum of £4,592.80 by way of compensation for unfair dismissal. In arriving at the compensatory award the tribunal found that on the balance of probabilities the applicant had been unemployed for a period of 12 weeks following his dismissal. His net pay with the respondent was £239 per week. That, together with the sum of £200 for loss of statutory rights, gave a total of £3,068 from which incapacity benefit of £585.60 was deducted, making a compensatory award of £2,482.40. To that figure was added the basic award of £2,110.40.
5. Against the remedies decision the respondent's solicitors entered a Notice of Appeal dated 23rd August 1999. Copies of the tribunal's decisions with summary reasons only were served with that notice.
6. The basis of the appeal was that the respondent had claimed in evidence that the appellant had found fresh employment soon after his dismissal in November 1998; the applicant had contended that he did not find new employment until April 1999. The tribunals finding, that he had obtained alternative employment in mid-February 1999, bore no relation to the evidence of either party.
7. Realising that the Notice of Appeal did not have attached the tribunal's extended reasons for the remedies decision under appeal, as required by Rule 3(1)(c) of the EAT Rules, on 20th September 1999 the respondent's solicitors wrote to the tribunal requesting extended reasons for the remedies decision.
8. By letter dated 24th September 1999 the Chairman refused that application. The time for requesting extended reasons under Rule 10(4)(c)(ii) had expired. The Chairman was not prepared to grant an extension of time. He said this:

"The chairman is not satisfied with the applicant's [sic] representatives' explanation for the delay. As a professional adviser he should have known that the last date for requesting extended reasons is 21 days from the date of promulgation of the summary reasons and that extended reasons are required in order to appeal to the Employment Appeal Tribunals. The chairman notes that the appeal was registered on 23 August, the 42nd day from promulgation of the summary reasons.

The applicant's [sic] representatives' comment "because of most of the correspondence took place in August, during the annual holiday season, and our clients are only a very small business" is not a satisfactory explanation for not taking instructions before 20 August."

9. Against the Chairman's refusal to give extended reasons for the remedies decision this appeal (the second appeal) was brought by letter dated 18th October 1999. This is a preliminary hearing held to determine, first, whether that appeal raises any arguable point of law to go forward to a full hearing and secondly, if not, whether the substantive appeal may proceed on the basis of summary reasons only under Rule 39(2) of the EAT Rules.
10. The respondents below do not appear and are not represented before us today. However, we have considered the papers and written submissions sent under cover of a letter from Gosschalks dated 11th February 2000.
11. As to the second appeal the respondents take the following points:

(1) the Chairman ought to have provided extended reasons under rule 10(4(d), which has no time limit.

That rule provides:

"The reasons for the decision of the tribunal shall be given in summary form except where-

…

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

In our judgment that rule does not assist the respondents. It permits the tribunal to give extended reasons rather than summary reasons where summary reasons would not sufficiently explain their decision. Here, the tribunal decided to give summary, rather than extended reasons in the first instance. That was a matter for the tribunal's discretion. Once it had decided to promulgate the remedies decision with summary reasons only, then the provisions of Rule 10(4)(c) came into operation. Either it was for the respondent's representative to ask for extended reasons at the hearing on 17th June 1999 or, once the decision had been promulgated with summary reasons on 12th July 1999, the 21-day time limit for seeking extended reasons began to run.

(2) The Chairman wrongly exercised his discretion in not extending time for the extended reasons application. The respondents' solicitor submits that a good reason was put forward for not making the application in time. The respondent is a small undertaking and it was difficult to obtain instructions; the clients were very busy and it was the holiday season. Frankly, we would have taken a similar view to that of the Chairman. It is no great task for a solicitor to make a precautionary request for extended reasons in time if he is unable to obtain his client's instructions as to whether or not they wish to appeal. However, our view is not important. The question for us is whether the Chairman's refusal can be characterised as perverse in the legal sense. In our judgment it cannot.

(3) Inadequate reasons for the refusal. We remind ourselves that there is no obligation on an Employment Tribunal or Chairman to give reasons for interlocutory orders as opposed to decisions. The refusal was an interlocutory order. Accordingly the Meek principle does not apply. Even had it done so, we are not satisfied that the respondent does not know why his application failed from the terms of the Chairman's letter.

12. It follows in our judgment that the second appeals raises no arguable point of law. It must be dismissed.
13. Turning to the application for the first appeal to proceed on summary reasons only, we bear in mind the guidance of the Court of Appeal in Wm. Hill Organisation Ltd v Gavas [1990] IRLR 488 and the approach of the EAT, for example, in Wolsley Centres Ltd v Simmons [1994] ICR 503. The question is whether in the exercise of our discretion we consider that the remedies appeal can be properly determined on the basis of the tribunal's summary reasons only.
14. In our view it cannot. The point taken in the appeals requires insight into the tribunal's reasoning which led them to conclude that the applicant obtained fresh employment 12 weeks after dismissal by the respondents, assuming that the evidence given by the parties was as set out in the first Notice of Appeal. The difficulty is that the summary reasons disclose no such reasoning. The tribunal simply state their conclusion on the point. In these circumstances we have concluded that this is not an appeal which can proceed on the basis of summary reasons only. Consequently it too must be dismissed at this stage.