United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	CHRIS MITROPOULOS (Of Counsel) Instructed by Messrs Kang & Co 13a Station Parade Barking Essex IG1 18BD


 


JUDGE PETER CLARK

1. The appeal presently before us at this preliminary hearing is by the Applicant before the Stratford Employment Tribunal, Mr Baker, against the refusal by a chairman, Mr S Duncan, to provide extended reasons for the Employment Tribunal's decision, striking out the Applicant's Originating Application, so far as it claims unfair dismissal under rule 13(2)(e) of the then 1993 Rules. The striking out order was made on 4 April 2001 and promulgated with summary reasons on 18 April. The decision or order to refuse extended reasons was made by a letter dated 3 July 2001. We shall call that 'the reasons appeal'.
2. By way of background the Applicant presented an Originating Application to the Employment Tribunal dated 15 July 2000 complaining of constructive unfair dismissal by his employer, the Respondent Stratford Labour Hire Ltd. That claim was resisted.
3. On 15 December 2000 the matter came before Mr Duncan's Employment Tribunal. By a decision with summary reasons dated 9 January 2001 the complaint of unfair dismissal was upheld, as was a further claim with which we are not concerned for unlawful deductions from wages and the question of remedy for unfair dismissal was adjourned to 28 February 2001. Certain directions were then given for that remedies hearing.
4. On 28 February 2001 the remedies hearing was again adjourned because the Applicant had not properly complied with the earlier directions. Further directions were then given.
5. On 4 April the matter returned to the Employment Tribunal. It was found that the Applicant had still not complied with the directions and by a decision with summary reasons promulgated on 18 April the Originating Application was struck out so far as the unfair dismissal claim was concerned (the strike out decision).
6. Against this strike out decision the Applicant appealed by a Notice dated 28 May 2001 (the strike out appeal), attaching the Employment Tribunal's summary reasons only. It is accepted by Mr Mitropoulos that the Applicant's advisers overlooked the need for extended reasons for the purpose of the appeal. Once this omission had been pointed out by the Employment Appeal Tribunal the Applicant's advisers applied for extended reasons for the strike out decision. That request was refused as being out of time, by the chairman; the reasons decision. Hence this reasons appeal.
7. Having considered the submissions made by Mr Mitropoulos we consider the correct course to take to be the following:

(1) although it appears to us that no good grounds in law are made out for challenging the reasons decisions we shall not, at this stage, dismiss the reasons appeal because we think it arguable that the strike out appeal can properly proceed on the basis of the Employment Tribunal's summary reasons, indeed described by the chairman in his letter of 3 July as "very detailed and close to being extended reasons." The discretion to allow the strike out appeal to proceed on summary reasons only which Mr Mitropoulos invites us to exercise in favour of the Applicant is contained in rule 39(3) of the EAT Rules 1993. See William Hill Organisation v Gavas [1990] IRLR 488; Wolsley Centers Ltd v Simmons [1994] ICR 503. However, we do not think it right ourselves to exercise that discretion at this Ex Parte hearing in the absence of representations from the Respondent. Accordingly we shall allow the reasons appeal to proceed to a full Inter Partes hearing.

(2) although the substantive appeal is not formally before us today we have considered the detailed skeleton argument submitted by Mr Mitropoulos in support of the substantive appeal on the footing that it is permitted to proceed on the basis of the Employment Tribunal's summary reasons for the strike out decision. We think it sensible to list the strike out appeal to follow the reasons appeal, again with both parties present, in case the next division exercises its discretion in favour of allowing the strike out appeal to proceed on summary reasons only. We are satisfied on the basis of the skeleton argument that the strike out appeal is arguable, not least because the Employment Tribunal do not appear to have considered whether a fair trial of the remedies issue was possible notwithstanding the Applicant's failure to comply with the directions earlier ordered.

8. In these circumstances we direct that both appeals, the reasons appeal and the substantive appeal be listed consecutively before the same division for a full hearing with both parties present. The combined cases will be listed for half a day, Category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the full appeal hearing date. Those skeleton arguments to deal both with the question of discretion to permit the substantive appeal to proceed on the basis of summary reasons only and the contentions in the substantive appeal itself, should it be reached. Copies of those skeleton arguments should be lodged with the Employment Appeal Tribunal at the same time that they are exchanged between the parties.