WENDY PICKERSGILL v EMPLOYMENT SERVICE [2002] EWCA Civ 23

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
[2002] EWCA Civ 23Case No A/2001/2152Venue Royal Courts of Justice, Strand, London WC2, Wednesday 16th January, 2002
Between
WENDY PICKERSGILLAppellant/ApplicantEMPLOYMENT SERVICERespondent
Before
Lord Justice AldousLord Justice KeeneMR C NASIR (of Messrs Linklaters, London EC2Y 8HQ) appeared on behalf of the ApplicantTHE RESPONDENT did not appear and was not represented

LORD JUSTICE ALDOUS:

[1]I invite Lord Justice Keene to give the first judgment.

LORD JUSTICE KEENE: This is a renewed application for permission to appeal from a decision of the Employment Appeal Tribunal dated 24th July 2001, whereby that Tribunal dismissed an appeal by Miss Pickersgill from a decision of an Employment Tribunal.

[3]Miss Pickersgill had been employed by the respondent as an officer at its Lewisham Job Centre from May 1991 until the time of her dismissal on 23rd August 1999. She was dismissed for reasons relating to her conduct in two respects. First, her conduct concerning a passport and, secondly, her unauthorised access to the respondent's computer system using her personal identification number on some 70 occasions.[4]She then brought a claim for unfair dismissal. This was rejected by the Employment Tribunal, by a decision with summary reasons only promulgated on 30th November 2000. The basis for the rejection of the claim was that the Tribunal found that the person dismissing the applicant genuinely believed that she was guilty of such unauthorised computer access; that he had reasonable grounds for that belief and he had carried out a reasonable investigation; the procedure adopted had been fair; and the decision to dismiss fell within the range of reasonable responses of a reasonable employer.[5]The applicant then appealed to the Employment Appeal Tribunal by a notice signed by her solicitor and dated 11th January 2001. Attached to the notice was a copy of the decision with summary reasons only. Paragraph 5 of the notice stated that she was currently applying for extended reasons for the decision. It is unclear whether such an application had actually been made at the date of the notice; certainly the Employment Appeal Tribunal in its decision records that none had been.[6]A letter dated 25th January 2001 from the Deputy Registrar of the Employment Appeal Tribunal referred to Rule 3(1)(c) of the Employment Appeal Tribunal Rules 1993, which expressly requires a copy of the extended reasons to be served on the Employment Appeal Tribunal in order to institute an appeal.[7]The subsequent course of events is summarised helpfully at paragraph 11 of the Employment Appeal Tribunal's decision:
"On 20th February 2001 Mr Nasir [solicitor for the applicant] responded, saying that his application for extended reasons had been refused by the Employment Tribunal Chairman, on the grounds that it was made out of time. That decision would not be appealed; instead the Appellant would invite us [that is the Employment Appeal Tribunal] to exercise our discretion under Rule 39(2) to hear the substantive appeal on the basis of summary reasons only. Wolesley Centres Ltd v Simmons [1994] ICR 503."
[8]Rule 39(2) of the Employment Appeal Tribunal Rules 1993 provides as follows:
"The Tribunal may, if it considers that to do so would lead to the more expeditious or economical disposal of any proceedings or would otherwise be desirable in the interests of justice, dispense with the taking of any step required or authorised by these Rules, or may direct that any such steps be taken in some manner other than that prescribed by these Rules."
[9]Consequently the Employment Appeal Tribunal has that general discretion. It is not in dispute that the provisions of Rule 39(2) therefore give the Employment Appeal Tribunal a discretion to depart from the strict requirements of the Rules, including the requirement for extended reasons, if it considers inter alia that it would be desirable in the interests of justice.[10]It is the exercise of that discretion by the Employment Appeal Tribunal against the applicant which it is now sought to challenge. The contention is that the decision not to allow the appeal to proceed on the basis only of summary reasons was a perverse one.[11]In support of that contention, Mr Nasir points primarily to a passage in the summary reasons which he says is clearly erroneous. At paragraph 5(iv) of those reasons, the Employment Tribunal purported to quote from the respondent's Rules of Conduct. There are three passages put into quotation marks. The first two are taken from two separate paragraphs in the Rules of Conduct. The third passage in quotation marks reads as follows:
"Unauthorised access to the computer system is regarded by the Respondent as serious misconduct for which dismissal is the usual penalty. All the Respondent's staff are aware of this."
[12]That is not an accurate quotation from the Rules. The Rules indicate that unauthorised access to information held on computers can be either serious misconduct or gross misconduct, depending on the circumstances, but they do not say that dismissal is the usual penalty for serious misconduct. The Rules in fact set out detailed procedures for determining the outcome of serious misconduct.[13]On this the Employment Appeal Tribunal said:
"19. Returning to the quotation, or misquotation, appearing in paragraph 5(iv) of the Tribunal's reasons, we think that this demonstrates the difficulty of permitting cases to proceed on the basis of summary reasons only. It seems to us that the passage cited is an amalgam of the provision for serious misconduct in the Respondent's disciplinary code and, it would seem, evidence that was given to the Tribunal orally as to the usual penalty for such serious misconduct. 20. It would be quite wrong, in our judgment, to allow this appeal to proceed on the basis of summary reasons only, where the nature of the point taken is one which could have been remedied by extended reasons, tidying up the detail of the summary reasons already given."
[14]Mr Nasir criticises that part of the Employment Appeal Tribunal's judgment, contending that the Employment Appeal Tribunal there seems to have been trying to justify the Employment Tribunal's error. He emphasises that oral evidence could not have had the status of the formal Rules of Conduct of the respondent. He further submits that extended reasons could not properly have corrected the error in the summary reasons. That is not their function and it would be quite wrong, he submits, for there to be some contradiction between the summary reasons and the extended reasons.[15]I have to say that I find these arguments as unpersuasive as I did when I dealt with this matter on paper. It is clear that the Employment Tribunal put into quotation marks something that was, in this particular respect, not a quotation from the Rules. It is obvious that the second sentence in the apparent quotation was bound to be derived from some other source, dealing as it does with what the respondent staff are aware of. That is something which can only have come from oral evidence before it. It is not the sort of statement that one can find in formal rules. So it does indeed seem likely that the previous sentence reflected such evidence also.[16]But one cannot be sure about that, and that is precisely why the Employment Appeal Tribunal Rules normally require extended reasons to be given before an appeal can be lodged. Summary reasons are just that: brief reasons produced quickly. If the matter is to be taken further then the normal position is that detailed reasons, called extended reasons, will be given. Extended reasons could lawfully have remedied this particular problem. There is no legal bar to that, and no doubt attention would have been paid to that particular aspect when extended reasons were drafted. I therefore can see nothing in this first and main point raised by Mr Nasir this morning.[17]He raises a second somewhat subsidiary point in his oral submissions today, which is in effect that the Employment Tribunal went wrong in a further part of its decision when it said that it regarded the issue of the use made by the appellant of her unauthorised access as being irrelevant. It is right that under the Rules that can be relevant to the distinction between gross misconduct and serious misconduct. However, the Employment Tribunal treated the conduct in this case as being merely serious misconduct, so the distinction between gross and serious misconduct was not of relevance. In my judgment, the Employment Appeal Tribunal was right when it said that the question of the use to which the access was actually put was in the circumstances irrelevant.[18]Finally, it is to be noted that Mr Nasir has confirmed this morning that no explanation was put before the Employment Appeal Tribunal as to why no application had been made for extended reasons in time, and no appeal against refusal out of time had been lodged. That is a matter which, in my judgment, the Employment Appeal Tribunal was entitled to bear in mind in the course of exercising its general discretion under Rule 39(2).[19]The upshot is that, so far as I can see, the Employment Appeal Tribunal's exercise of its discretion was a sound one, and not open to valid criticism. I can see no real prospect of a successful appeal in this case. It follows that, for my part, I would dismiss this application.

LORD JUSTICE ALDOUS: I agree.

ORDER

Application for permission to appeal refused. (Order not part of approved judgment)

Cited in 1 later judgment