United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS D ROMARY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER LANGSTAFF QC:-

1. We have before us a preliminary hearing in a proposed appeal against a number of decisions made by an Employment Tribunal in Leeds. The argument before us has been entirely procedural and somewhat technical in relation to time limits. We shall deal, however, with the applications in the order in which, logically, they should be dealt with.
2. First, we had an application to adjourn this preliminary hearing. Ms Romney, who has appeared under the ELAAS Scheme and for whose submissions we are, as always, very grateful, has suggested to us that we might have some sympathy for Mr Schofield, who is, in effect, the personal face of the corporate Shop and Bakery Equipment Ltd and that we should permit him to produce for the use of this Tribunal a bundle of documents which help to explain what happened during the months since the latest of the Tribunal decisions, (apart from the Tribunal's refusal to give Extended Reasons) about which he might complain. We are going to decline the invitation to adjourn this preliminary hearing. To exercise the power of adjournment there would have to be good reason to do so. We think that the form of the bundle was sufficient notice, particularly to someone in business, as is Mr Schofield, of the matters which were likely to be dealt with before this Tribunal. It is quite clear from the bundle that the length of time that had passed since the relevant Employment Tribunal decisions was likely to be a matter of concern to us. Accordingly, he should have come prepared. He says that he telephoned this Tribunal and spoke to a Miss Deborah Armstrong and she told him that the matter was going ahead. It does not seem from what has been reported to us that that conversation in any way was likely to give him comfort that time limits and chronology would not be a matter of importance to us. Accordingly we shall proceed. In a case like this where there has been extensive delay, finality is of importance.
3. Let us then turn to the substance of the matters. To understand this it is necessary to set out the chronology. The claim was one by an employee, Mr Price, against Shop and Bakery Equipment Ltd for unpaid holiday entitlement. That matter came initially before a Tribunal sitting at Leeds on 31 October 2000. What happened was that a decision was reached in the absence of Mr Schofield. He was not truly absent. He was in the respondents' waiting room. No one called to collect him. Accordingly, anyone would have sympathy with Mr Schofield whose first contact with an Employment Tribunal was an unfortunate one, to say the least, and one about which he had every right to feel aggrieved. He sought a review and the matter came again before a Tribunal which granted a review and heard the review in January 2001. Summary reasons for the decision reached on 18 January were given to the parties on 15 February 2001. Because they were reasons in summary form they would not have provided a suitable basis for an appeal to this Tribunal, where an appellant is required to file extended reasons for any decision appealed against (see Rule 3(1) of the Employment Appeal Tribunal Rules 1993). In order to obtain extended reasons, a request would have to be made within 21 days under the Regulations then applicable, the Regulation being Regulation 10(4)(c) of the Employment Tribunal Regulations 1993.
4. In any event, the time for appealing a decision of the Employment Tribunal is 42 days from the delivery of extended reasons. It follows that the period has not elapsed because extended reasons have not been provided but, in spirit, they certainly have been well exceeded because it was not until July when a letter of 7 July 2001 was sent to this Tribunal that there is the first written notification available to us of any appeal or intention to appeal. That was already some several days out of time. If there had been extended reasons given in February the time limit would have expired by the end of March. If extended reasons had been sought, the time limit would have expired shortly after the beginning of March. Some four months had therefore elapsed before any written notification to this Tribunal of any intention to appeal and, even then, no extended reasons were supplied. Nor, it appears, had extended reasons then been sought.
5. No doubt prompted by the realisation that extended reasons would be needed before an appeal could be considered, Mr Schofield wrote to the Employment Tribunal. The Employment Tribunal received that letter, it appears, on 21 August 2001. For reasons relating to their computer system they did not reply until 19 September. By that letter the application for extended reasons was refused. On 21 September, therefore within two days of that, the appellant appealed against the refusal, in effect, to supply extended reasons. It follows that from that chronology, the appeal that we have to consider is an appeal against the Tribunal's refusal to grant extended reasons. Alternatively, we are invited to exercise our discretion to hear an appeal against the review decision on the summary reasons provided.
6. So far as extended reasons are concerned, the Chairman exercised a discretion not to provide those reasons. He did so on the basis that no application had been made to extend time and no reason had been given for an extension of time. Both of those bases are factually accurate so far as we are aware. We can only interfere, this being an Appeal Tribunal, if that exercise of the discretion by the Chairman was reached upon some misapprehension as to the facts or some wrong principle of law or unless it was frankly perverse. We cannot see that there was any mistake of law which the Chairman made. The decision was within his discretion. It is not wrong to refuse a request for extended reasons out of time where no request has been made for extension of time and nothing has been put before the Chairman as to why time might be extended.
7. We then turn to whether we should exercise our discretion to hear an appeal on summary reasons. Here we have to take into account in exercising our discretion whether we should do so, or not, in the light of the length of time which has gone past. We are invited to treat the summary reasons in effect as though they were extended reasons. That would normally suggest that there should have been an appeal within 42 days of those reasons being given. We are told that Mr Schofield wrote to the Employment Tribunal shortly after the decision, seeking to appeal it. Being effectively a litigant in person, he waited to hear what the result might be. He heard nothing. In the meantime, it has been established with the assistance of Ms Romney, proceedings were being taken against him in the Halifax County Court to enforce the payment of the sums which the Tribunal had ordered. We know nothing of any correspondence that might have preceded the order of the Halifax County Court but we have been handed a document which shows that on 10 May, Mr Schofield was ordered to attend the Court on 11 July in order to satisfy the Court why, in effect, he could not pay: there was to be an examination as to his financial circumstances.
8. If nothing else, that should have prompted, we would have thought, an enquiry by Mr Schofield as to what had happened to the appeal about which he had yet to hear from the Employment Tribunal. We, however, have been left with no information and no explanation that is satisfactory as to the delays that occurred between his writing, if he did, to the Tribunal shortly after their decision and to his writing to this Tribunal in July 2001. Accordingly we are faced with exercising a discretion, in effect, to decide to hear a claim which was at the time it was appealed some three months at least out of time. Moreover, we have heard that the monies ordered to be paid have in fact been paid to the employee and it appears have been spent by him, and we think it right to have regard to the fact that any order we make which permits the appeal to proceed might, if the appeal were ultimately successful, result in the deprivation from the employee of money which, believing to be his, he had spent. This simply emphasises the importance of being prompt in appealing orders which might have financial consequences for both parties.
9. Although we all have sympathy for the way in which matters began and the way in which Mr Schofield was left high and dry in October 2000 in the respondents' waiting room of the Employment Tribunal, we do not think that that sympathy can infect a decision which we have to make judicially as to whether there is any good reason for us, in effect, to extend the time for appealing in respect of the review decision in February. We regret that we have been given no good reason to do so and we decline to do so. We are disappointed that, in consequence, we may lose the ability to enjoy an interesting argument upon a difficult point of law but we have to deal with matters, as we indicated at the start, in a logical and progressive order and sadly for Mr Schofield the decision to which we have come is that, on the basis we have outlined, his appeal must be dismissed.