United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR L G SAUNDERS (Solicitor) Messrs Bowen Johnsons Solicitors 112 Saltergate Chesterfield Derbyshire S40 1NE
For the Respondents	MISS S MOORE (of Counsel) Instructed by: Mrs G I Murphy Principal Solicitor North East Derbyshire District Council Council House Saltergate Chesterfield Derbyshire S40 1LS


 


JUDGE PETER CLARK:

1. The appellant, Mr Frank Griffiths, commenced employment with the respondent Council in 1973. In August 1996 he was appointed assistant manger of the respondent's leisure centre at Sharley Park near Clay Cross. He remained in that post until his summary dismissal following a disciplinary hearing held on 25th November 1997.
2. On 2nd February 1998 he presented a complaint of unfair dismissal to the Sheffield Employment Tribunal. The claim was resisted.
3. An Employment Tribunal, chaired by Mr O T B David, held a liability hearing over seven days in July and October 1998. In a reserved decision, promulgated with extended reasons on 23rd October 1998 ['the liability decision'] the tribunal upheld the appellant's complaint. They found that he had been dismissed for a potentially fair reason relating to his conduct, namely, the respondent's belief that he had, on three separate occasions, described a worker engaged by the respondent as a fitness instructor, Mr Mantock, as a "black bastard". He is of African Caribbean racial origin. However, the tribunal criticised the respondent's procedures leading up to the dismissal and further found that, bearing in mind the appellant's excellent employment record, the penalty of dismissal fell outside the range of reasonable responses. A reprimand or warning as to his future conduct only was merited.
4. The tribunal also dealt with the question of contribution at the liability stage. Having heard from the witnesses to whom he had allegedly addressed the offending remark about Mr Mantock, the tribunal found as fact that the appellant did use those words. However, somewhat to our surprise, they concluded that it would not be right to make a finding of contribution on his part.
5. The respondent did not appeal against the liability decision.
6. The question of remedy for the appellant's unfair dismissal was considered at a subsequent hearing before the same tribunal sitting on 18th December 1998. The appellant sought reinstatement and gave further evidence. The respondent called no evidence at that hearing in addition to the evidence led at the liability hearing, but made submissions opposing a reinstatement order. At the close of that hearing the Chairman delivered an oral judgment, which was tape-recorded. The tribunal found that it would not be practicable to order reinstatement or re-engagement of the appellant. His remedy was to be by way of compensation only. The case was then further adjourned in order to give the parties an opportunity to agree compensation.
7. On 6th January 1999 the tribunal promulgated a remedies decision with summary reasons ['the remedies decision'].
8. The appellant had throughout been represented by a solicitor, Mr Saunders of Bowen Johnsons solicitors of Chesterfield. On 15th February 1999 Mr Saunders lodged a Notice of Appeal with the EAT on behalf of the appellant, challenging the remedies decision ['the first appeal']. Paragraph 3 of that Notice refers to extended written reasons received on 7th January 1997. That was a reference to the summary reasons promulgated on 6th January 1999. No extended reasons had been sought or obtained from the Employment Tribunal. A copy of that decision with summary reasons was served with the Notice of Appeal.
9. We pause here to refer to the relevant procedural rules. Rule 3(1)(c) of the EAT Rules 1993 requires an appellant to lodge with his Notice of Appeal a copy of the Employment Tribunal's extended written reasons for the decision under appeal. Rule 39(1) provides that failure to comply with the rules shall not invalidate the proceedings and by rule 39(3) the EAT has power, in effect, to hear an appeal based on summary rather than extended reasons. see William Hill Organisation v Gavas [1990] IRLR 488 CA and Wolesley Centres v Simmons [1994] ICR 503 EAT.
10. Rule 10(4)(c)(ii) of the Employment Tribunal Rules of Procedure 1993 ['the ET Rules'] provides that a request by a party for extended written reasons for a decision of an Employment Tribunal shall be made within 21 days of the date of the promulgation of a decision with summary reasons. Rule 15(1) empowers a Chairman to extend the time for doing any act under the Rules, even if the time limit has expired.
11. In accordance with the EAT's usual practice the appellant's solicitor was informed, on receipt of the Notice of Appeal, that it was not in proper form, there being no extended written reasons served with the Notice.
12. Accordingly, the appellant's solicitor made application, outside the 21 day period provided for in ET Rule 10(4)(c)(ii) to the Chairman for extended written reasons for the remedies decision.
13. By a further decision with reasons promulgated on 10th March 1999 ['the reasons order'] the Chairman refused the request on the grounds that it had been made some five weeks out of time.
14. Against the reasons order the appellant has brought a second appeal dated 14th April 1999. It is that appeal which comes before us today for full hearing, leave having been granted by a division presided over by Charles J at a resumed preliminary held on 15th November 1999.
15. Not for the first time I shall make this point on the tension which exists between the EAT Rules and ET Rules. Rule 3(1)(c) of the EAT Rules requires that an appellant serve a copy of the Employment Tribunal's extended written reasons for the decision or order appealed against. Rules 2(2) of the Employment Tribunal's (Constitution etc) Regulations 1993, to which the ET Rules are scheduled, draws a distinction between decisions of an Employment Tribunal and certain, but not all, orders of the Employment Tribunal. In the present case the Employment Tribunal's remedies decision is a decision properly so called; the Chairman's refusal to provide extended written reasons is an order, not a decision of the Employment Tribunal. Under rule 10 of the ET Rules the Employment Tribunal is obliged to provide extended written reasons for decisions only, and not for orders falling outside the definition of a decision. Consequently there is no mechanism under the ET Rules to require a Chairman to provide extended written reasons for an order not amounting to a decision so as to permit the appellant to comply with rule 3(1)(c) of the EAT Rules. Accordingly, and as a matter of invariable practice, the EAT entertains appeals against a reasons order, such as in this case, under the powers granted by EAT rule 39.
16. In these circumstances two potential issues arise in the second appeal before us today:

(1) whether the Chairman erred in law in refusing the appellant's request for extended written reasons for the remedies decision; if not

(2) whether we should exercise our discretion under EAT rule 39(3) to allow the first appeal to proceed on summary reasons only.

First Issue

17. Here, the first question which arises for consideration is how should a Chairman exercise his discretion in deciding whether or not to accede to a request for extended written reasons made outside the 21 day time limit? Mr Saunders accepts that such a course will only be taken in exceptional circumstances, by analogy with the practice of the EAT in deciding whether or not to extend time for appealing. see United Arab Emirates v Abdelghafar [1995] ICR 65, per Mummery J. In particular, has the party in default provided a good excuse for that default?
18. In the present case, with admirable candour, Mr Saunders puts forward no real excuse. His explanation for not seeking extended written reasons for the remedies decision in time is that he considered that the Employment Tribunal summary reasons echoed the oral reasons given by the Chairman at the remedies hearing and therefore equated with extended written reasons. In fact, for reasons to which we shall return, we are satisfied that they do not. On any view, no good excuse has been put forward for the default.
19. Next, what are our powers to interfere with the reasons order on appeal? It is common ground that there is no distinction to be drawn between interlocutory and substantive appeals. The appellant must show an error of law on the part of the Employment Tribunal or its Chairman. That means, in practice, showing that the order was perverse in the Wednesbury sense. see Medallion Holidays Ltd v Birch [1985] ICR 578, Bastick v James Lane Turf Accountants [1979] ICR 778.
20. How then does Mr Saunders challenge the Chairman's reasons order? He relies on the observations of Charles J in the judgment which he delivered at the preliminary hearing on 15th November 1999, which in turn rely on the case as it was presented to the EAT at that ex parte hearing. The suggestion appears to be that if the summary reasons coincided with the oral reasons as appeared to be the case on the basis of a note of the oral reasons taken by Mr Saunders at the hearing on 18th November, which would therefore have meant that the extended reasons would not differ materially from the summary reasons, then the Chairman was wrong to say that he could not reconstruct those oral decisions as extended reasons in this case, as appears from the written reasons which he gave for the reasons order.
21. It seems to us that there are two answers to that point. The first is that the Chairman, it now appears from his letter written to the EAT following the preliminary hearing and dated 2nd December 1999, drafted the summary reasons without listening to the tape-recording of his ex tempore judgment. Secondly, we are quite satisfied that the summary reasons omit relevant findings articulated in the Chairman's oral judgment.
22. Miss Moore has taken us in detail to the fuller note taken by a representative of the respondent. Mr Boothroyd, on the Chairman's ex tempore judgment given at the remedies hearing and compared that note with the summary reasons promulgated by the tribunal. We need not repeat the material points of difference in this judgment. Suffice it to say that they are significant in the context of the first appeal.
23. It follows, in our judgment, that the Chairman did not take into account an irrelevant factor in his written reasons for the reasons order; nor do we think that his refusal to provide extended written reasons out of time can be characterised as perverse.
24. Accordingly, on this first issue, we shall dismiss the appeal against the reasons order.

Second issue

25. The question for us under rule 39(3) is whether there are sufficient findings in the Employment Tribunal's summary reasons for the remedies decision to permit the first appeal to proceed without causing unfair prejudice to the respondent.
26. In Wolesley, by a majority, the EAT found that the tribunal's summary reasons were sufficient for dealing with the issues raised in the underlying appeal without prejudice to the respondent to that appeal. In Ali v Christian Salveson Food Services Ltd [1996] ICR 1, the EAT permitted an appeal to proceed on the basis of summary reasons only in circumstances where, in those reasons, the tribunal expressly accepted in full the contents of a 13 page skeleton argument submitted by Counsel for the respondent employer.
27. In the present case the first appeal challenges as perverse the tribunal's finding that it was not reasonably practicable to order reinstatement or re-engagement. The additional findings made in the Chairman's ex tempore judgment given at the remedies hearing further explain that decision. To proceed on the basis of summary reasons only which exclude those findings would, in our view, unfairly prejudice the respondent in defending the first appeal. Further, one of the grounds of appeal is that the tribunal failed to consider the remedy of re-engagement. However, Mr Boothroyd's note of the ex tempore judgment indicates a finding by the tribunal that the appellant conceded in evidence at the remedies hearing that he was aware of no other job which might suit him. That was effectively an end to the remedy of re-engagement. However, that concession is not recorded in the tribunal's summary reasons.
28. It follows, in our judgment, that this is not a proper case in which to allow the first appeal to proceed on the basis of summary reasons only. Consequently that, presently potential appeal, must also be dismissed.