United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	ALISON DOWNS Solicitors Instructed by: Messrs Freemans Jordan House (East) Hall Court Way Telford Shropshire TF3 4NN


 


JUDGE D PUGSLEY

1. In this case on Friday 16 February 2001 the Employment Tribunal sitting at Shrewsbury in Shropshire decided that the Appellant was unfairly dismissed.
2. However, the Employment Tribunal, although they made that finding went on to say that applying the principle of the House of Lords decision in Polkey -v- A E Dayton Services Ltd [1997] IRLR 303, there was a 10% chance that the dismissal would not have occurred, if a fair procedure had been followed. They therefore, accepting the Applicant's schedule of loss, went on to make an award of £22.50 for a basic award and they made a compensatory award amounting in total to the sum of £298.44.
3. There was a rather fundamental mistake, we are told, in the original decision. In that it erroneously states that there was a fair dismissal. The Appellant's representatives wrote to the Employment Tribunal and a certification of correction was despatched and received on 23 March. We only have the amended decision.
4. No application at that stage was made for extended reasons. At that stage the Appellants have the statutory right to write for full extended reasons but no application was made. Thereafter, the Appellant's drafted a notice of appeal dated 3 March. They received from the Deputy Registrar of this Tribunal a letter dated 11^th of May explaining that the Employment Tribunal decision was only in summary form and that in order for the appeal to proceed it was necessary to file a copy of the extended reasons of the Employment Tribunal in accordance with the requirements of rule 3(1) of the Employment Appeal Tribunal Rules 1993.
5. The Appellant's solicitor had drawn to her attention the case of William Hill Organisation v A Gavas (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.
6. It then pointed out that the time for applying for extended written reasons is set out in the Explanatory Notes sent with the Employment Tribunal's decision:

"In the event of your request for the extended written reasons being refused, you may make an appeal against that refusal and apply to this Tribunal to exercise its discretion and hear the appeal on summary reasons. The appeal must be made within 42 days of the date and be supported by a copy of the refusal letter. The matter will then be set down for a preliminary hearing."

7. Following upon that Mrs Downs, the solicitor acting for the Appellant wrote to the Employment Tribunal in Shrewsbury:

"I should be grateful if you could please forward to us a copy of the extended written reasons in relation to the Tribunal's decision in this matter."

And they then enclose a copy of the letter from the Employment Appeal Tribunal dated 11 May to which the Tribunal Chairman, John Haslam sent in a letter which date dated 25 May saying:

"Thank you for your letter dated 22 May 2001, the contents of which are noted.

I am directed to say your request for extended reasons has been refused as your application is well out of time."

It is common ground that the time for which extended reasons should be asked at the hearing or within 14 days of the hearing.

8. Mrs Downs tells us there had been problems with the Appellant's marriage and he had left the matrimonial home. Correspondence was returned 'addressee gone away'. The Appellant had been the subject of an accusation made by his former wife and her current boyfriend. The result was that the Appellant arrested and charged required to attend a one day trial at Telford Magistrates Court. He was acquitted after the trial. It was a traumatic time for the Appellant and clearly his domestic troubles took priority over the preparation of the appeal.
9. We regret that this was the position but none of that was put to the Chairman in the request for extended written reasons. All that was sent was the letter with a copy of the letter from the Employment Appeal Tribunal. We do not consider that on the information before us it can be said that in any way the Chairman failed in the exercise of his discretion on the information before him not to give full extended reasons. We say that it would so be easier for this Tribunal if reasons had been given but that does not mean that it is a wrongful exercise of his discretion not to do so. We therefore dismiss the appeal against the Chairman's refusal to grant extended reasons.
10. However, having said that we only think it right and fair to go on to consider, as a matter of discretion, notwithstanding the absence of full written reasons, whether we can see if there is an identifiable area of law in this case which might call for further argument before a full Tribunal. Members of this Tribunal have had experience of sitting on Employment Tribunals.
11. It is our united view that pre eminently in this case the overview of the original Tribunal is one that is within their discretion. They made a decision that the Respondent has totally failed to apply any fair procedural machinery to dismissing the Appellant. That is reflected in their finding of unfair dismissal. We consider that having regard to the information that was before them they were clearly within their discretion to take the view, as they did, there was only a 10% chance of dismissal would not have occurred.
12. If a fair procedure had been followed, on any view of the matter, including the Appellant's own account of the incident this was the decision which was open to that Tribunal. It may be that some Tribunals would have taken the view there was an unfair dismissal and ordered no compensation of any sort on the basis the Appellant was the author of his own misfortune. It may equally be that another Tribunal may have made a deduction of less than 90%. But at the end of the day this Tribunal had the opportunity of judging the witnesses and had a unique capacity to assimilate that we might call the chemistry of the case. It does not appear to us that there was any matter on which we can say there is an error of law here. We say with great respect we simply do not understand why those acting for the Appellant just did not simply ask for extended reasons. By so doing you are not committing yourself or your client to an appeal or the expense thereof, all you are doing is asking for full reasons.
13. As indicated on the Appellant's own account he admits grabbing hold of the shoulders of the other operative, he denied actually hitting or assaulting him. The Tribunal had the unique opportunity of hearing these matters. As we say some Tribunals may well have awarded him nothing; other Tribunals may have made a lesser deduction than this Tribunal. That is no more than a glimpse of the obvious that each Tribunal judge's each case on its own facts. We cannot see an error of law that could be argued and we therefore dismiss the appeal.
14. We are grateful for the help we have received from Mrs Down.