United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS LOUISE BROOKES (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER BURKE QC

1. Miss Laniyan was employed by the London Borough of Hackney for many years until she was dismissed in September 1998 for misconduct. The misconduct alleged was making numerous, lengthy and expensive private telephone calls on the employer's telephones.
2. Her claim that she had been unfairly dismissed was heard by the Employment Tribunal at Stratford, chaired by Mr Hemmings on 16 March of last year. Miss Laniyan was unrepresented.
3. Her application for an adjournment was rejected; the Tribunal found that the employers reasonably believed that Miss Laniyan had been guilty of misconduct, that the dismissal process was fair, and that the employers acted reasonably in dismissing her for that misconduct. The decision with Summary Reasons was promulgated on 13 April of last year.
4. Miss Laniyan wished to appeal against the decision. Her ground, or her primary ground was that she had not, at the hearing, been fit to represent herself. In June 1999 she had a baby. In October 1999 the hearing of her claim was adjourned by the Tribunal on the basis of a General Practitioner's medical certificate which said that she was suffering from post-natal depression and was unable to attend.
5. On 16 March of last year, she produced a medical certificate to the Tribunal which said that she was suffering, as before, from post-natal depression and was, as a result, unfit to represent herself. It was the decision of the Tribunal in the exercise of its discretion, despite that certificate, to proceed with the hearing; that decision lay at the heart of Miss Laniyan's desire to appeal, although it may be, it is not yet clear, that she also wished, or might have wished, to appeal on the basis that there was evidence that she had been treated differently from others who had committed the same type of misconduct.
6. On 22 May, Miss Laniyan gave Notice of Appeal to this Appeal Tribunal against that decision, although her Notice of Appeal was not accompanied, as the Rules require, by Extended Reasons; why that was so will become clear in a moment.
7. What then occurred is not entirely clear, but the outline appears to have been as follows: on 3 May, Miss Laniyan claims, nineteen days after the promulgation on 13 April of the decision arising from the hearing of 16 March, she wrote to the Tribunal asking for Extended Reasons. She thought at the time that the twenty one day period, within which Extended Reasons had to be sought under the Rule, expired on 4 May; although it probably matters not, it seems to us it probably expired on 5 May. On 4 May she rang the Tribunal who said that they had not received her letter, according to her account; the same thing happened on the following day.
8. On 8 May, according to Miss Laniyan, she was told that the Tribunal had still not received her letter of 3 May. It seems quite clear that, on 8 May, she faxed to the Tribunal a copy of her letter of 3 May, asking for Extended Reasons and added to the copy which she faxed a note which said that the original had been sent on 3 May, but apparently had not been received, and therefore she was faxing a second copy as well.
9. The Tribunal, by a letter of 19 May, responded to the application for Extended Reasons. The letter says:

"Thank you for your letter of 3 May 2000 which was referred to the Chairman.

The Chairman declines the request for Extended Reasons. The application is made out of time."

If the letter was not received by the Tribunal until it received the faxed copy on 8 May, then her application for Extended Reasons was, in strictness, out of time; it should have been received by 5 May 6 and 7 May were respectively a Saturday and Sunday.

10. Ms Brookes who has appeared on behalf of Miss Laniyan today, under the ELAAS scheme (and we are extremely grateful to her for doing so, and for the way in which she has put this case helpfully and succinctly) submits that if the Chairman considered, as it is submitted he should have done, whether or not to extend time on the basis that the application for Extended Reasons arrived on 8 May, when it should have been at the Tribunal by 5 May, he reached a decision which no reasonable Tribunal would reach. Alternatively, if he did not consider extending time, then he should at least have considered doing so, and having considered should have done so.
11. It seems to us, at the very least, arguable that the faxed copy of the letter of 8 May, which contained the note in the right hand bottom corner, referring specifically to the fact that a letter had been originally sent on 3 May, should have been treated as an application for an extension of time; and it seems to us equally arguable that the Chairman either did not exercise his discretion at all upon such application or, if he did exercise his discretion, exercised his discretion having regard to the very slight nature of the delay, and to the general and unrestricted ground on which an extension of time can be granted under Rule 15 of the Tribunal Rules, in a manner which was arguably perverse.
12. We are not saying for one moment that this appeal will or will not eventually succeed, but we think it has arguable grounds, and should, if necessary, go forward for a full hearing. Let me explain what we mean when we say "if necessary". We of course, at a preliminary hearing, cannot possibly order the Chairman to produce Extended Reasons, but it may be that both parties, once they have seen this preliminary decision, will appreciate the need, if it is possible to do so, to avoid a full hearing of an appeal which is intended only to produce Extended Reasons which will then have to be examined to see what grounds of appeal against a substantive decision can be put forward, and whether there is any merit in those grounds.
13. It may be possible for agreement between the parties to be reached as to how the appeal against the refusal of the Chairman to provide Extended Reasons should proceed; we say no more than that. If no agreement can be reached, there will have to be a full hearing of the appeal against the refusal to apply Extended Reasons.
14. We should add that we have considered whether we should say that there are no arguable grounds because, ultimately, Miss Laniyan's prospects on the merits might be said to be not high, but at this stage we think it would be unwise for us to say that there are no arguable grounds on that basis. If at a full hearing of the appeal that becomes relevant, it will be a matter for those who are dealing with that appeal.
15. Ms Brookes has suggested that the other appeal, against the substantive decision should simply be adjourned; and we think that is the right approach. It may be that it will need to be withdrawn and substituted by a new Notice, or that the grounds will have to be modified; that is all in the future.

Category C, one hour.