United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BOOTH (of Counsel) Appearing under the Employment Law Appeal Advice Scheme
For the Respondent


 


JUDGE CLARK

The history of this matter is as follows.

1. The Appellant was a long standing employee of the Respondent, having been employed at their Cheadle, Hume factory from July 1970 until his dismissal effective on 31 October 1998.
2. Following his dismissal he presented a complaint of unfair dismissal/redundancy to the Manchester Employment Tribunal on 20 January 1999. It was his case that the Respondent moved their Centre of operations to their site in Cumbria, but that he was not given the opportunity to transfer to that site. The claim was resisted. The Respondent asserted that he was dismissed by reason of redundancy after he had been offered and rejected the opportunity to work in Cumbria.
3. The case was listed for hearing at Manchester on 16 April 1999. The Appellant did not attend. The claim was struck out by a decision dated 26 April.
4. The Appellant applied for a review of that decision. He said that his representatives, Direct Legal Advisers Ltd, had gone into liquidation and had failed to inform him of the Tribunal hearing date.
5. The review application was heard by the Employment Tribunal on 9 December 1999. They were sympathetic to the Appellant's circumstances and allowed the application for review, setting aside the original decision, and then proceeded to hear the claim on its merits.
6. By a further decision promulgated with summary reasons on 5 January 2000, they dismissed the claim on it merits. On the critical factual issues of whether the Appellant had been offered and had rejected an offer of a move to Cumbria, they preferred the Respondents evidence. That finding is contained in paragraph 6(d) of their merits reasons.
7. The Appellant applied for extended reasons for the merits decision by a letter dated 25 January. That application was refused by the Chairman by letter dated 7 February on the basis that the request for extended reasons was made outside the time limit set by rule 10(4)(c)(ii) of the Employment Tribunal Rules of Procedure. Consequently the Appellant wrote to the Employment Appeal Tribunal on 8 February indicating that he wished to appeal against the merits decision. He enclosed a Notice of Appeal of that date (the substantive appeal).
8. It was pointed out that he required extended reasons to appeal the merits decision. Consequently by letter dated 15 February 2000 he gave notice of appeal against the Chairman's refusal to provide extended reasons. (the reasons appeal).
9. It is the reasons appeal only which is listed before us today for preliminary hearing. The first question is whether the Chairman erred in law in refusing to provide extended reasons. Mr Booth, who appears today on behalf of the Appellant under the ELAAS pro bono scheme, submits that the request for reasons was made in time. Rule 10(4)(c) provides, that a request for extended reasons made in writing by a party after the hearing must be made within 21 days of date on which that document, the document containing summary reasons, was sent to the parties. He submits that having written to the Tribunal by letter dated 25 January, the Appellant had complied with that 21 day rule. We do not accept that submission, it seems to us that the application for extended reasons must arrive at the Tribunals offices within 21 days of the date of promulgation of the decision with summary reasons. Assuming in the Appellants favour that his letter dated 25 January arrived on 26 January, that would not be within 21 days, in other words on the 20^th day after the promulgation of the summary reasons.
10. No further submission is made to the effect of the Chairman wrongly exercised his discretion in refusing to extend time in these circumstances and consequently the reasons appeal fails.
11. However, that is not the end of the matter. By rule 39(3) of the Employment Appeal Tribunal Rules we have a discretion to permit the substantive appeal to proceed on the basis of summary reasons only where there those reasons are sufficient for determination of that appeal. See William Hill –v- Gavas (1990) IRLR 488; Wolesley Centres Ltd –v- Simmons (1994) ICR 503.

At paragraph 6(d) of the Employment Tribunals summary reasons begins: -

"alternative employment was offered. We need to say more about this latter aspect which has been at the nub of this case. "

12. They then go on to deal in detail with the evidential conflict over the offer of employment in Cumbria and make certain findings of fact adverse to the Appellant.
13. Since it is these findings which form the basis on which the substantive appeal is founded. We are satisfied that sufficient reasons are given to allow us to determine the substantive appeal.
14. Accordingly we shall exercise our discretion on the Rule 39(3) in favour of the Appellant and allow the substantive appeal to proceed.
15. Mr Booth has indicated the kernal of that appeal. He has referred us to the finding by the Tribunal in paragraph 6(d) of their reasons in this passage

"He (the Appellant) says this was because he told that he had to stay and look after things in Cheadle but the Respondent says that the Applicant had decided he did not want to go to Workinton either on a short term or long term basis."

16. The submission that is made is that the passage which purports to set out the effect of the Respondents evidence is in fact wholly unsupported by evidence. That is a potential ground of appeal.
17. In the circumstances, we think the proper cause is to direct that the substantive appeal be registered and allocated an appeal number; that in the usual way the Respondent is asked to lodge a PHD form and we shall direct, at this stage, that the learned Chairman be asked to provide his Notes of the Evidence given on behalf of the Respondent which it is said, supports that finding to which we have referred. When those Notes of Evidence are received I shall give a direction as to whether the substantive appeal is to be listed for preliminary hearing or whether it should proceed to a full hearing.