United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J EADY (of Counsel) Pattinson & Brewer Solicitors 71 Kingsway London WC2B 6ST
For the Respondent	MISS J HEAL (of Counsel) Denton Wilde Sapte Solicitors One Fleet Place London EC4M 7WS


 


MR RECORDER LANGSTAFF QC

1. The Employment Tribunal sitting at Bristol in June 2000 dismissed the Appellants' claims that they had been unfairly dismissed. They have not appealed that decision, as yet, because to do so would require the Employment Tribunal to provide Extended Reasons for its decision. By a second decision, promulgated on the 29^th September 2000, the Chairman refused to provide Extended Reasons. This appeal is against that refusal.

2. The decision consists of four paragraphs only. Yet each of those paragraphs is said to contain an error which singly, or cumulatively, would justify this Tribunal in interfering.

3. The first three paragraphs provide as follows:-

"1. On 21 June 2000 the Applicants' claim of unfair dismissal was dismissed. The Decision with Summary Reasons in accordance with Rule 10(4) Employment Tribunal Rules of Procedure 1993, were sent to the parties on 10 July 2000. On 25 August 2000 the TGWU, who did not represent the Applicants, at the hearing applied for Extended Reasons.

2. By Rule 10(4)(c) reasons are given in extended form if a party so requests at the hearing or within 21 days of the date on which that document was sent to the parties. Even if I take the date of receipt as being 2 days after 10 July, time expired on 2 August 2000. The application is therefore out of time.

3. I have power to extend time under Rule 15. However, I have to bear in mind that the application for Extended Reasons is part of the process of instituting an appeal and the courts have emphasised that strict compliance with the time limits is essential and that a stricter approach is appropriate at appeals than where there has not yet been a trial on the merits. Aziz v. Bethnal Green City Challenge Co Limited [2000] IRLR 111."

4. It is immediately apparent from those reasons first that the date of actual or deemed receipt of the decision with summary reasons by the parties was critical; second, that the identity of the person entitled to ask for Extended Reasons might be critical (Paragraph 1), and third that the Chairman in exercising his discretion under Rule 15 regarded the strictness of the approach which he should adopt as material, and chose a strict rather than liberal approach. The basis upon which he did so appears in part to have been because he viewed the application for Extended Reasons as part of an appeal process.

5. The final paragraph of the decision:

"In the absence of any clear explanation of the delay, therefore, I refuse the application for Extended Reasons"

again contains a statement which is open to challenge – namely, that there had been no clear explanation of the delay.

6. The request for Extended Reasons was contained in a letter dated 24^th August 2000 from a Mr Trehearne, Regional Industrial Organiser for the Transport and General Workers Union. It said, in the material paragraph:

"We have been requested to advise our member on a possible appeal but unfortunately we have not as yet received the Decision of the Employment Tribunal. We are given to understand from the Respondents that summary reasons were made available to them on 10.7.00, which they have been good enough to copy to us. We would, therefore, request Extended Reasons of this Decision so that we can advise our member accordingly."

7. This appeal came before this Tribunal, presided over by His Honour Judge Levy Q.C. on 5^th December 2000. The preliminary hearing was adjourned for a full statement to be given by the Appellants as to what letters if any they or their agents had received following the 10^th July 2000 about the Decision, and asking that the Chairman comment upon that material once it had been supplied. An Affidavit of Mr Trehearne records that correspondence from the Employment Tribunal addressed to John Power (who was the Union official conducting the hearing on behalf of the Appellants) would have been passed to him upon receipt by the office secretary, yet he never received a copy of the Summary Reasons.

The Legal Context

8. The material parts of the Employment Tribunal Rules of Procedure, contained in Schedule 1 to the Employment Tribunals (Constitution, etc.) Regulations 1993, provide as follows:-

"10. Decision of Tribunal

(1)…

(2) The decision of a Tribunal, which may be given orally at the end of a hearing or reserved, shall be recorded in a document signed by the Chairman.

(3) The Tribunal shall give reasons for its decision in a document signed by the Chairman. That document shall contain a statement as to whether the reasons are given in summary or extended form…

(4) The reasons for the decision of the Tribunal shall be given in summary form except where

(a)…

(b) a request that the reasons be given in extended form is made orally at the hearing by a party;

(c) such a request is made in writing by a party after the hearing either –

(i) before any document recording the reasons in summary form is sent to the parties, or

(ii) within 21 days of the date on which that document was sent to the parties; or

(d) the Tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision;

and in those circumstances the reasons shall be given in extended form.

(5) The clerk shall transmit the documents referred to in paragraphs (2) and (3) to the Secretary who shall enter them in the Register and shall send a copy of the entry to each of the parties…

15. Extension of Time

(1) A Chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired."

SUBMISSIONS

9. For the Appellants, Ms. Eady submitted that two questions arose: the date on which the reasons in summary form were "sent to the parties", from which date time would begin to run (which she termed "the Appropriate Date" point), and secondly whether the Chairman had properly exercised his discretion in refusing to allow time to be extended for the making of the application (which she termed "the Exercise of Discretion" point). The submissions for the Respondents broadly addressed those same two issues.

The Appropriate Date

10. Ms. Eady argued that the Chairman had applied the general presumption that where a document is sent by post it is deemed to have been received in the ordinary course of post unless the contrary is proved, pursuant to Section 7 of the Interpretation Act 1978.

11. That section provides:

"Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

12. The significance of Section 7 applying is that it requires the document to be properly addressed, and provides room for proof that service has not in fact been effected. Such proof was (she submitted) provided by the letter of 24^th August 2000; or, if the most that letter could do would be to put the Tribunal on notice that it would be necessary to enquire into whether or not the letter had been properly addressed and Section 7 was properly applicable, would have made the information now contained in the Affidavit of Mr Treherne available to the Chairman. This proved that the letter had not in fact been "sent".

13. In her Skeleton Argument, she referred to T & D Transport (Portsmouth) Limited v. Limburn [1987] ICR 696. That was a case in which the Respondent employers had not attended a hearing before the Industrial Tribunal. The hearing went ahead. The Respondents applied for a review of the decision (that the employee had been unfairly dismissed and should be compensated) on the ground that they had not received notice of the proceedings leading to the decision. The Tribunal, having heard evidence, concluded with regard to Section 7 of the Interpretation Act 1978 that the employers had not displaced the presumption that notice of the hearing before the Industrial Tribunal had duly been served on them.

14. In the course of the argument this Tribunal, presided over by Mr Justice Popplewell, rejected a submission that Section 7 of the Interpretation Act had no application. It concluded (at 699D):

"We are all of the view that Section 7 does apply because Section 7 is not dealing merely with the question of the sending of a document, but also with the receipt. Although the word "receipt" is not used and the word is "serve" or "give" or "send", the phrase "the service is deemed to be effective" and "the service is deemed ..to have been effective" are words which indicate that the receipt of the document is inevitably bound up with the sending of it."

15. This followed the earlier decision of Migwain Limited (In Liquidation) v. Transport and General Workers Union [1979] ICR 597. Although there was dissent in the result, the Tribunal unanimously were of the view that Section 26 of the Interpretation Act 1989, the predecessor section to Section 7 of the Interpretation Act 1978 and expressed in similar though not identical terms, applied to the receipt of notice of the proceedings leading to a decision of the Industrial Tribunal.

16. Moreover, the Tribunal accepted that the presumption as to receipt only arose where it was first established that the correspondence in question had been properly addressed (see per Slynn J @ 603F-H).

17. Ms. Heal, for the Respondent, argued that Section 7 of the Interpretation Act 1978 did not apply to Rule 10 of the Employment Tribunal Rules of Procedure 1993. She relied first upon the unreported decision of Mr Justice Morison, sitting in Chambers on the 13^th November 1998, in the case of London Borough of Hammersmith & Fulham v. Ladejobi (EAT/500/98).

18. That case concerned the date from which time started to run for the purposes of calculating the 42-day period within which an appeal should have been brought from a decision of an Employment Tribunal, if it was to be brought at all. This concerned Rule 3(2) of the Employment Appeal Tribunal Rules 1993, which provided so far as material

"The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which the Extended Reasons for the Decision or Order of the Employment Tribunal was sent to the Appellant."

It was argued for the would-be Appellant that the word "sent" should be given the meaning referred to in Section 7 of the Interpretation Act 1978, effectively making the date that of receipt, 2 days after the Extended Reasons had been put, properly addressed, in the post. In support of that argument, Counsel referred to two previous decisions of the Employment Appeal Tribunal (Immigration Advisory Service v. Oommen [1997] ICR 683, which considered that Section 7 of the Interpretation Act 1978 applied to the date when time began to run under Rule 7(7) of the Employment Tribunal Rules 1993 (the material phrase being "..beginning with the day on which the document recording the making of the Order is sent to him..") and Derrybaa Limited v. Castro-Blanco [1986] ICR 546, which considered that it applied to Rule 5(1) of the Tribunals (Rules of Procedure) Regulations 1985 (now superseded) (of which the material words are "shall…not less than 14 days…before the date so fixed send to each party a notice of hearing…").

19. Notwithstanding those authorities, Mr Justice Morison held that Section 7 of the Interpretation Act 1978 did not apply to Rule 3(2). The basis upon which he did so appears from the following passage in his judgment:

"The argument presented by Mr Pullen on behalf of the Respondent is to the effect that if one looks at the EAT Rules, it is clear that the intention of those Rules is that the date from which time started to run was the date when the decision was promulgated, which is the date when it was sent to the parties. That is a date which is contemplated by Rule 10(5)…." (We have set out the Rule above) "…He pointed out that the Industrial Tribunals are not courts of record and therefore the sending and promulgating of the decision is the equivalent date to the date when a court of record seals its Order which is the date from which time to appeal starts to run. Accordingly he says that the date when the document was sent to the parties is the equivalent of the sealed date or the date of the sealing of a High Court Order from which time starts to run, see Order 59, Rule 4, sub-rule 1, and secondly he says, in any event, that Section 7 of the Interpretation Act 1978 only applies to provisions in rules or statutes which are authorising or requiring documents to be served by post. It does not apply, he says, to the determination of the date from which time must be calculated for the purposes of the 42 day period.

He draws attention to the fact that the Employment Appeal Tribunal's own Rules, Rule 35 reflect accurately the provisions of Section 7 of the Interpretation Act itself, that is where a party serves a document on the EAT by post, then it is deemed to have been delivered in the normal course of post in the absence of evidence to the contrary. So that Rule 3(2) is not a service provision. Rule 35 is the service provision to which Section 7 of the Interpretation Act would apply.

It seems to me that both submissions made by Mr Pullen are correct. As I see the position, Section 7 of the Interpretation Act is concerned and concerned only with statutory provisions authorising or requiring the service of documents by post. The section makes reference to service by post, and the opening words of Section 7 are "Where an Act authorises or requires any document to be served by post…". Accordingly, I respectfully disagree with the passage in the judgment in Immigration Advisory Service v. Oommen to which I have referred. It seems to me that there is no support for the Judge considering that Section 7 applies to the calculation of the date from which time begins to run. As he said in the passage to which we have referred, the natural meaning of Section 7 is that it is dealing with service by a particular method, namely, posting and deeming documents to have been served where that method of service is adopted. That is the equivalent to Rule 35. It seems to me in those circumstances that there is no room for the application of Section 7 to the interpretation of Rule 3(2). Rule 3(2) is clear. It is the date when the document was sent to the appellant that time starts to run. Thus if Section 7 were capable of applying to Rule 3(2) it seems to me plain that a contrary intention does appear from the structure of the Rules.

That is sufficient to dispose of the appeal. But it does seem to me, furthermore, that it is highly likely that the intention of Parliament, when providing for our rules and the intention of the Lord Chancellor when making them, was to equate the date of sending of the documents which was contemporaneous with the date of promulgation as equivalent to the date when a High Court Order is sealed. It seems to me in the circumstances that there is a contrary intention shown by the Rules."

20. In Mock v. Commissioners of the Inland Revenue [1999] IRLR 785, Mr Justice Morison again returned to the same issue. The appeal concerned the words "were sent" in Rule 3(2) of the Employment Appeal Tribunal Rules 1993. Although no specific reference is made to Ladejobi in the judgment, the reasoning reflects that earlier case. Mr Justice Morison cast doubt upon the correctness of Immigration Advisory Service v. Oommen, and that of Derrybaar v. Castro-Blanco. He observed:

"It seems to be important to recognise Section 7 for what it is, namely a statutory provision which applies, unless a contrary intention appears, to legislation or rules requiring or authorising documents to be served by post."

21. The material part of the judgment is at paragraph 11 and 12. Mr Justice Morison said this:-

"In my view, the scheme of the legislation is plain. Industrial Tribunal Chairmen are required to produce reasons. When reduced to writing, it is the responsibility of the clerk to transmit those reasons to the Secretary, who enters them in the Register and sends a copy to the parties. A copy of the entry is attached to the Decision. It follows that at the end of the Decision there is inserted a date which specifies when the document was entered into the Register. That provides a fixed date and explains why Rule 3(2) refers to the date on which Extended Written Reasons were sent to the Appellant. This is itself a reflection of Rule 10 of the Industrial Tribunal (Constitution, etc.) Regulations 1993 Schedule 1, Rules of Procedure. The context of the rules tends inevitably to the view that "was sent" means when it was sent, i.e. the date from which time starts to run. This was the clear intention of Parliament. There is no room for the application of Section 7 if it would otherwise have applied. The rule is defining a specific date at which an act was done.

This accords with justice and practicality. It provides a clear date from which time for appeal is to be calculated. It accords with the practice as it has always been understood. Both parties then know when the time for appeal has expired. The suggestion (to the contrary) would lead to great practical difficulty and injustice to parties."

22. Thus Ms. Heal's submission was that Section 7 of the 1978 Act relates to the service of documents. She submitted that whereas Notices are served, decisions are not. Although Rule 3(2) of the Employment Appeal Tribunal Rules was that which was under consideration in the two decisions of Mr Justice Morison to which she referred, it relates to exactly the same process and date as Rule 10(4)(c)(ii) of the Employment Tribunal Rules under consideration in the present appeal, namely the sending of reasons for the decision to a party.

CONCLUSIONS ON THE APPROPRIATE DATE POINT

23. We are faced with authorities, none of which relates in terms to Rule 10(4) of the Employment Tribunal Rules of Procedure 1993. Although each considers different provisions: Rule 7(7) of the 1993 Rules (IAS v. Oommen); Rule 5(1) of the 1985 Rules of Procedure (Derrybaa); and Rule 3(2) of the Employment Appeal Tribunal Rules 1993 (Ladejobi, and Mock) the reasoning is in conflict.

24. We have to attempt to resolve the conflict by having regard, in the first place, to statute itself. The Interpretation Act 1978 addresses the questions to be asked in two stages. The first requires that the Act to be construed "authorises or requires" the relevant document to be served by post. Once it is established that it does so, then the second question – whether a contrary intention appears – is to be asked.

25. The Rules with which we are concerned are the Rules of Procedure scheduled to the Employment Tribunals (Constitution, etc.) Regulations 1993. Rule 20(3) provides:-

"All Notices and documents required or authorised by these Rules to be sent or given to any person hereinafter mentioned may be sent by post…".

Included in those categories of persons "hereinafter mentioned" is a party. In that case, the address is to be the address specified in the Originating Application as the one to which Notices and documents are to be sent (Rule 20(3)(c)(i)). Rule 20 is of general application to all the Rules. It thus includes Rule 10. A document containing the summary reasons for a decision comes within the expression "all notices and documents…".

26. Accordingly, the first question to be posed in applying Section 7 of the Interpretation Act 1978 is satisfied. (The fact that the word "send" appears in Regulation 20 is addressed itself by the parenthesis in Section 7 of the Interpretation Act which makes it plain that the section covers provisions which authorise or require the "sending" of a document).

27. As to this first question to be addressed in the application of Section 7 of the Interpretation Act, Mr Justice Morison's reasoning in Ladejobi contains no reference to Rule 20 of the Employment Tribunal Rules. It does not appear that Mr Justice Morison was asked to consider provisions within the Employment Tribunal Rules themselves, to which Section 7 of the Interpretation Act 1978 would prima facie apply, indicating a date of receipt following the ordinary course of posting. Yet it could hardly be suggested that Rule 3(2) of the Appeal Tribunal Rules required time to run from the date that a decision was put in the post, whereas Rule 10 required it to run only from the date of receipt after posting.

28. Rule 35 of the Employment Appeal Tribunal's own Rules was referred to in argument before Mr Justice Morison (see page 5 of Ladejobi). Rule 35, however, does not apply in terms to Rule 3(2) with which that decision was concerned, because Rule 35 begins: "any notice or other document required or authorised by these Rules to be served on, or delivered to, any person may be sent to him by post….". Rule 3(2) neither requires nor authorises the sending of the decision of the Industrial Tribunal to a prospective appellant. The meaning of that expression has to be derived, as we see it, from the Employment Tribunals Rules of Procedure 1993 (to which Rule 20 of those Rules applies).

29. If we are wrong in that, nonetheless the interpretation to be given to Rule 3(2) of the Appeal Tribunal Rules must, we consider, be read consistently with that of other relevant legislation. It could hardly be presumed that Parliament intended that time would run from one date, for the purposes of applying for reasons in extended form, or for a review, and from a different date for the purposes of time running for an appeal.

30. If Mr Morison intended in his judgment in Ladejobi or Mock to hold that the first question posed in applying Section 7 of the Interpretation Act of 1978 was not satisfied, we respectfully decline to follow his reasoning. It is not only because he was not referred to Employment Tribunal Rules, nor to the fact that there was a statutory provision applying to the relevant Rule which required or authorised the document concerned (the judgment) to be served by post. Nor, with respect, do we follow the logic of Paragraph 7 in Mock. That appears to draw a distinction between a provision in a statute which specifies the way in which service might be effected, and when it is deemed to have been effected on the one hand, and the date from which time starts to run on the other. Yet it is difficult to see what significance the date upon which service is deemed to have been effected has unless it is relevant for the running of time for some other purpose (whether it is a clear day's notice for some purposes, or for the purposes of serving a Notice of Appeal in others).

31. The second question arising in applying Section 7 of the Interpretation Act is whether or not there is any contrary intention. None appears in terms. If it is to be derived from the context, it must in our view be clear that the general rule provided for by statute should not apply. As we see it, Mr Justice Morison derived this contrary intention from the fact that the decision is entered into the Register, and the date of that occurring is inserted at the end of the Decision itself. Thus in Mock he said: (paragraph 11)

"That provides a fixed date and explains why Rule 3(2) refers to the date on which extended written reasons were sent to the Appellant…"

This, he went on to say, provided a clear date from which the time for appeal was to be calculated. This amplifies the reasoning in the earlier case of Ladejobi in which Mr Justice Morison simply said that it was "highly likely" that the intention of Parliament was to equate the date of sending of the documents which was contemporaneous with the date of promulgation as "equivalent to the date when a High Court Order is sealed", and that in the circumstances there was a "contrary intention shown by the Rules". We had some difficulty in deriving the intention of Parliament that Section 7 of the 1978 Act should not apply when that intention has not been expressed in any wording in the Rule itself, and when there is no textual analysis of any statute, statutory instrument, or rules made under them which demonstrates the clear intention to which the President was referring.

32. The importance of certainty was argued before Mr Justice Keene in Immigration Service v. Oommen. Adopting the words of Sir Nicolas Browne-Wilkinson V.-C. from R. v. Secretary of State for the Home Department ex parte Yeboah [1987] 1 WLR 1586 @ 1593, that:-

"If actual receipt is necessary to enable the addressee to take some necessary step, then the word "sent" in the principal act would be construed to mean "received"",

he accepted (@ [1997] ICR 683, 691A-F) that although there may be slightly less certainty if the date at which an Order is "sent" means not the date of posting but the date of receipt, or more precisely, the deemed receipt, the reduction in certainty is not great. An Employment Tribunal can proceed on the footing that delivery has been achieved in the ordinary course of post, unless and until the party proves the contrary. He pointed, however, that if the date of posting were to be taken as the date when the Order was sent it could have serious disadvantages from the point of view of the party to whom the document was sent. He pointed out both that it might not always be clear what the date of posting was, and second that such an interpretation of the word "sent" would provide no protection in cases of non-receipt.

33. Neither argument is quite as clear in the present case as it was in Oommen: for the date of entry in the register must be included in the date of the Extended Reasons (Rule 10(5)), and it might be argued that in many cases a litigant will know of the result of his application, even if he does not know of the reasons for it. However, we consider that the second reason advanced in the judgment of Mr Justice Keen retains considerable force, notwithstanding. A decision on an application may, within the Rules, be made in the absence of a party. A decision may be reserved. Yet the running of time within the Rules is not dependent either upon the appearance of the losing party, nor upon the decision having been given at the hearing.

34. Moreover, once it is accepted as a general proposition that Section 7 applies not simply to the date by which a document is to have been received, but also the date from which time is to be calculated, the degree of uncertainty engendered by time running from the date of receipt, rather than the date of posting is inherent in the statute, and can therefore never be a good reason on its own for divining the necessary contrary intention.

35. If this is so, it remains to consider the effect of the scheme of the Rules as a whole, which in Mock was derived essentially from Rule 10(5). We note that in Rule 10(5) there is no requirement that the date upon which the document is to be sent to a party should be the same as the date upon which the document is entered in the Register (nor, indeed, unless it is implicit, that the note of entry in the Register forms part of the requirement of the Rule).

36. Ms. Heal has sought to support the reasoning in Ladejobi and Mock. We prefer the argument of Nazede that Rule 10(4)(c)(ii) is concerned with the date of sending (or receipt, whichever is correct), and Rule 10(5) does not assist with determining the relevant date. We note, in particular, that had it been intended that the date would have begun with the entry in the Register, it would have been simple for the wording of Rule 10(4)(c)(ii) to reflect that.

37. Accordingly, so far as it is determinative of this appeal, we prefer to follow the reasoning in Oommen, rather than that in Mock.

DATE OF RECEIPT

38. If Section 7 of the Interpretation Act 1978 applied, then the next question for us to determine is whether the Employment Tribunal were entitled to hold that the Appellant had failed to prove that service had not been effected at the time at which the letter would have been delivered in the ordinary course of post. It is common ground between the parties that the presumption as to delivery only arises, and the burden of proof of the contrary is placed upon the Appellant, if it is first established that the correspondence in question has been properly addressed.

39. Nazede takes two points. She says that in the summary reasons for rejecting the claims of unfair dismissal, Mr Marks (who represented Mr Morrissey) was recorded as belonging to the TGWU. He did not. The representatives of the Appellants did. The decision refusing Extended Reasons is wrongly recorded has having been determined by a fully constituted Employment Tribunal at a hearing on the 19^th June 2000. In that decision, the Chairman states that the TGWU had not represented the Appellants at the hearing of the unfair dismissal claims (when the Union had in fact done so), which might reflect information before him that the Applicant for Extended Reasons had not been entitled (and may not have been sent) those Reasons.

40. She further argues that the necessary burden of proof was discharged by the letter from Mr Trehearne of 24^th August.

41. Ms. Heal submits that the decision appealed against found as a fact that the summary reasons were sent to the parties on 10^th July 2000. That finding is not subject to appeal. It is not therefore open to the Appellants now to raise it.

42. As to proof of non-receipt, she submits that the letter of 24^th August merely stated that the TGWU ("we" in the letter) had not yet received the decision. It did not explain the delay. It had to be remembered that this was a case in which the decision had been announced at the conclusion of the Tribunal hearing. If, truly, the decision had not been received, the Chairman might have expected an earlier inquiry as to when it might be available. There was, she submitted, material here for a reasonable Chairman to think that the Appellants had in truth received the reasons, but were just saying that they had not done so.

CONCLUSIONS

43. We do not accept Ms. Eady's submissions that mis-descriptions in the Extended Reasons themselves imply that the decision was not properly addressed to the representatives of the parties, as Rule 20(3)(c)(i) required. Indeed, in her Skeleton Argument she herself merely submits that this is not a case where there can be a "strong presumption" that the decision was in fact properly sent out. Given that the parties appear to have had notice of the hearing, and attended, we see nothing to infer that their proper addresses were not recorded as such, and used as such by the Employment Tribunal.

44. However, we accept her submission that whether or not there was sufficient proof to discharge the burden depended upon whether the Chairman accepted the letter from the Transport and General Workers Union as an honest representation of fact. There was no evidence to suggest dishonesty in that letter. We saw no reason why Mr Trehearne should not be telling the truth, albeit without detail. In his further comments, the Chairman merely repeated that: "..the letter of 24 August 2000 did not meet [the] burden of proof." He gives no reason for doubting the credibility of Mr Trehearne.

45. The lay Members of the Tribunal were particularly concerned that, in effect, the integrity of a Trade Union officer was being questioned implicitly. The statement: we have not as yet received the decision…" is as clear a statement of non-receipt as one might hope for. It might emerge, upon further investigation, that the letter had indeed been received within the Union office, but had not found its way to the responsible officers. It might emerge, upon further examination, that receipt of the document had been overlooked, or indeed it might emerge that this was a dishonest attempt to mislead a Tribunal. However, on the face of it, when the Chairman came to consider the time scale within which Extended Reasons could have been requested, we think that on the material he had before him the only reasonable conclusion was that the burden of proof had been satisfied, subject only to further enquiries that might be made. Had he then asked for, and received, the Affidavit that we have seen we think it would have been perverse not to have concluded that it had. Accordingly, we consider that this appeal should succeed upon the first ground.

THE EXERCISE OF DISCRETION

46. If we are wrong in our conclusion on the first ground advanced before us, the question remains whether or not the Chairman was entitled to exercise his discretion as he did. It is common ground between the parties that:-

(a) even if an application for Extended Reasons is received out of time, a Tribunal Chairman retains a general discretion to extend time under Rule 15 of the Employment Tribunal Procedure Rules;

(b) this Tribunal will not readily interfere with the proper exercise of a discretionary power vested in a Tribunal. As was observed in Bastick v. James Lane (Turf Accountants) Limited [1979] ICR 778 (approved by the Court of Appeal in Carter v. Credit Change Limited [1979] ICR 908:

"Either we must find….that the Tribunal, or its Chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the discretion which was made by the Tribunal, or its Chairman, in the exercise of its discretion was so far beyond what any reasonable Tribunal or Chairman or could have decided that we are entitled to reject it as perverse."

SUBMISSIONS

47. Ms. Eady submitted that the Chairman regarded the application for Extended Reasons as part of the process of instituting an appeal, and exercised his discretion on this basis. Secondly, he exercised his discretion upon the basis that there was no clear explanation for the delay: whereas there was, namely non-receipt of the reasons. Thirdly, he adopted a deliberately strict approach by reference to the approach appropriate at appeals, by relying upon Aziz v. Bethnal Green City Challenge Co Limited [2000] IRLR 111. As a matter of policy and practice, different considerations applied to an application for Extended Reasons. In particular, she submitted that the giving of detailed reasons was important to enable a party to know why it was he had lost, and thus fulfilled a function very different from that of a first stage in an appeal process. It was party of the fundamental rights of a citizen (see Article 6 ECHR) that reasons should be given for a decision decisive of his rights.

48. Ms. Heal pointed out that in the context of the exercise of discretion, the letter of 24^th August 2000 merely stated that the TGWU had not yet received the decision. There is no other explanation of the delay since the hearing date. She asked us to bear in mind that in this particular case the reasons had been given orally at the hearing. It was not therefore a case in which the parties were in ignorance of the reasons for that decision. Moreover, she reminded us that Rule 10 provided no less than three opportunities for a request to be made for the giving of reasons in extended form. That request could be made orally at the hearing (Rule 10(4)(b)), secondly, before any document recording the reasons in summary form was sent to the parties (Rule 10(4)(c)(i)) and only as a long stop Rule 10(4)(c)(ii), which would have to be within 21 days of the date upon which the document was sent.

CONCLUSIONS

49. In United Arab Emirates v. Abdelghafar and Another [1995] IRLR 243, Mr Justice Mummery as President of the Employment Appeal Tribunal considered whether time should be extended beyond the 42 day period for appealing against a Tribunal's ruling, in a case in which the Notice of Appeal from the would-be Appellant had been received 52 days out of time.

50. He stated the principles which governed the exercise of this Tribunal's discretion to extend time. Having set out, first, that the discretion was to be exercised in a principled manner in accordance with reason and justice, weighing and balancing all the relevant factors, and that it was relevant both that prescribed time limits were not targets to be aimed at or expressions of pious hope that requirements to be met on the one hand, and on the other that a party should not be denied the adjudication of his claim on its merits because of procedural default unless the default caused prejudice to his opponent for which an award of costs could not compensate, he went to say:-

"The approach indicated by these two principles is modified according to the stage which the relevant proceedings have reached. If, for example, the procedural default is in relation to an interlocutory step in proceedings, such as a failure to serve a pleading or give discovery within the prescribed time limits, the Court will, in the ordinary way and in the absence of special circumstances, grant an extension of time. Unless the delay has caused irreparable prejudice to the other party, justice will usually favour the action proceeding to a full trial on the merits. The approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the Court or Tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings."

51. In Aziz v. Bethnal Green City Challenge Company Limited [2000] IRLR 111, the Court of Appeal heard a challenge to the Abdelghafar approach. It was urged that that approach was too strict as against the would-be appellant. It concluded that the guidance in Abdelghafar provided a perfectly acceptable formula for the exercise of the discretion by the Employment Appeal Tribunal whether to allow an extension of time for appealing. Lady Justice Butler-Sloss emphasised that: "It is right that on appeals on law people must get their cases in in time." Sir Christopher Staughton (paragraph 20) agreed with what Mr Justice Mummery had said in Abdelghafar that the time limit ought only to be relaxed in "rare and exceptional cases where the Appeal Tribunal is satisfied that there is a reason which justifies departure from the time limit laid down in the Rules"

52. Of importance, as we see it, to the reasoning in Aziz is the distinction between the appellate jurisdiction of the Employment Appeal Tribunal as compared to the Court of Appeal. The former is entitled to hear appeals on law only, whereas the Court of Appeal has the jurisdiction to deal with facts if it can be shown that the Court below went plainly wrong on the facts that had been found.

53. The application for extended reasons is not itself an appeal. It has no direct consequence to the Respondent. In that sense it is entirely unlike an appeal. It may be, and often is, linked to the making of an appeal because the practice of the Appeal Tribunal, in accordance with Rule 3(1) of the Employment Appeal Tribunal Rules 1993 is to require a copy of the Extended Written Reasons for the decision or order of the Employment Tribunal before an appeal will be entertained. The description of an application for Extended Reasons as being part of "the process of instituting an appeal" is ill-chosen. It is certainly necessary that there should be Extended Reasons before an appeal will be entertained. However, there may be various other purposes behind a request for Extended Reasons for a decision. Obtaining a record in writing of the detailed reasoning may be a matter of importance. This may particularly be so if a party has been absent when oral reasons were given at a hearing, or indeed if an application was determined in her or his absence. Secondly, it may enable consideration to be given to whether to begin the process of appeal. Thirdly, it may provide the opportunity for a review.

54. It is not clear whether the Chairman in Paragraph 3 was talking generally about applications for Extended Reasons (using "the application for Extended Reasons" in the sense of describing such an application) or whether he was restricting himself to the particular case before him. If the latter, the letter of 24^th August 2000 from Mr Trehearne indicated that the purpose of summary reasons was to advise the Appellant on a possible appeal. In either case, by directing himself as he did the Chairman was taking a restricted view of the purpose of the application – for, in general, such applications may have a number of motives behind them which are not related to an appeal; and, in the latter case it excludes the possibility that the Appellant may, on seeing the full reasons, choose not to proceed. Had the Chairman had in mind these other purposes the question arises whether he should have adopted less strict a standard. The first principle must be that the rules of court and the associated rules of practice, devised in the public interest to promote expeditious despatch of litigation, must be observed. Although it is tempting to see the application for Extended Reasons as falling somewhere between the interlocutory step in proceedings, in respect of which Mr Justice Mummery (Paragraph 24, Abdelghafar) thought the Court might be more liberal as to extensions of time, and the appeal, in which case the approach would be strict, we cannot accept Ms. Eady's submission to that effect. The reason why there may be a more generous approach to interlocutory steps prior to trial is that, if there were not, the litigant might suffer the draconian consequence of being unable to pursue a meritorious claim simply by reason of a procedural default which has caused no prejudice to anyone else. That reasoning cannot apply where there has been a determination on the merits. Although the application may be viewed as administrative, and as imposing burdens upon the Chairmen of Tribunals rather than the opposing party, there is only the importance of having reasons to mitigate to the full rigour of the approach that requires time limits to be regarded as requirements to be met. And it must be noted that summary reasons will in any event have been given.

55. We have been persuaded, however, by Ms. Eady's submission that the delay must be seen in the context of the right of a party to request Extended Reasons within 21 days of the date on which summary reasons were sent in documentary form to the parties. Delay in the sense of not exercising the rights in Rule 10(4)(b) or (c)(i) are irrelevant to that right. It seems to us, as we have indicated in our decision in respect of the appropriate date point that the letter from Mr Trehearne did set out – albeit very briefly – a clear explanation for that particular delay. It was simple. Summary reasons had not been received. There was nothing which we consider to have been unclear about that. It seems to us, therefore, that the discretion was exercised on a full basis. This appeal must succeed upon the exercise of discretion point 2.

56. We have determined that on the material made available to us by Mr Trehearne, and upon the view we take as to the application of Section 7 of the Interpretation Act 1978, the Appellant has discharged the burden of proof in showing that the summary reasons were not received. If we were wrong on our conclusion as to that, we should nonetheless have exercised our power under Section 35 of the Employment Tribunals Act 1996 to extend time.

57. Accordingly, we shall direct that Extended Reasons be provided.