Banor Ltd v Howarth [1992] UKEAT 463_91_2610

EAT

Banor Ltd v Howarth

[1992] UKEAT 463_91_2610 · 1992-10-26

MR JUSTICE KNOX : This is an appeal by Banor Ltd from a decision of the Industrial Tribunal sitting at Manchester on 23 May 1991 when they held unanimously that Banor Ltd unreasonably refused to provide the Applicant, their ex-employee, Miss Howarth with written reasons for her dismissal and they awarded her compensation of £210. The summary reasons were sent on 4 June, full reasons were sent on 29 June both in 1991. The two sets of reasons bear a very close resemblance to each other but are not identical.

The case was essentially a very simple one in that Miss Howarth was employed from 10 October 1989 until 14 December 1990 when it is and always was common ground that she was dismissed. Miss Howarth in her Originating Application claimed that she wrote a letter to her employers, posted on 2 January 1991, asking for written reasons for her dismissal and other matters. She said in that Originating Application:

"I have received no reply to this letter".

The matter came before the Industrial Tribunal as we have said on 23 May 1991 and there was no appearance on behalf of Banor Ltd. In the meanwhile there had been an Order made in the Liverpool County Court for the payment of £273 by Banor Ltd in settlement of a dispute with Miss Howarth and when the Industrial Tribunal made the decision that it did, there was an application by Banor Ltd for a review, or what was treated as an application for review, which contested the decision that there had been an unreasonable refusal to give reasons on the basis that there had been reasons given in a letter on 16 December 1990. That was not put before the Industrial Tribunal in the original hearing and in those circumstances it is not altogether surprising that the Industrial Tribunal took no account of it because it is evident that it was available before the Industrial Tribunal hearing occurred.

So far as the hearing before the County Court was concerned, the only basis on which reliance was placed in the application for review by letter was this:

"With regards to the dismissal this has already been sorted out in a County Court."

That we read as clearly referring to relief against the dismissal itself which being without notice, may very easily have been wrongful rather than unfair and thus grounds for County Court action by Miss Howarth. What Banor Ltd did not say at that stage was that they had failed to attend the Industrial Tribunal because they thought that the County Court proceedings had dealt with the failure to give written reasons for dismissal and the unreasonable refusal to do so, so that on that basis we see no basis for complaint or for an appeal.

Where however the matter does become less clear is in relation to the reasons that were actually given by the Industrial Tribunal. The summary reasons read as follows, so far as is material:

"We find that a written request was made for written reasons for dismissal and these were not provided. We find therefore that there was an unreasonable refusal to provide written reasons."

The full reasons are not quite identical - they read as follows:

"We find that a written request was made for written reasons for dismissal and these were not provided. In the absence of the respondents we are bound to find, as we do, that there was an unreasonable refusal to provide written reasons for dismissal."

The Notice of Appeal contains two grounds of appeal, neither of which seems to us to bear examination. One is that written reasons for dismissal were given within 14 days and reliance is sought to be placed on the letter of 16 December of which a copy was supplied. As we have already said the Industrial Tribunal was right to reject that because it was evidence that was plainly available before the Industrial Tribunal hearing and was not produced.

The second ground of appeal is that:

"a verbal agreement was made in front of a registrar in Liverpool County Court 23.4.91 that the Industrial Tribunal action would be cancelled as agreed by Miss E Howarth. This was the reason for me not attending as far as I was concerned the case was cancelled."

Now that is inconsistent with the reason which we quoted above from the letter which was treated as an application for review and we do not see a ground for appeal there. However, the fact remains that S.53 subsection (4) which sanctions unreasonable refusals to provide a written statement, is in different terms from subsection (1) which gives an employee a right to be provided by his employer, on request, within fourteen days of that request, with a written statement giving particulars of the reasons for his dismissal.

Although we express no views as to whether the appeal will in fact succeed, it does seem to us that there are grounds for regarding as arguable, a submission that the Industrial Tribunal was in error in deciding that there had been an unreasonable refusal on either of the two expressed grounds, the ground in the summary reasons that the written reasons had not been provided, or the ground given in the full reasons namely the absence of the respondents. It seems to us arguable that neither of those circumstances leads to the conclusion that a mere failure amounts to an unreasonable refusal.

Accordingly, what we propose to do is this. We propose to give leave for this appeal to go forward to a full hearing if, but only if, the Notice of Appeal is amended within fourteen days of today's date so as to delete the existing grounds of appeal in the Notice of Appeal and substitute a ground on the lines indicated above, namely that the Industrial Tribunal was in error in deciding that there was an unreasonable refusal to provide written reasons on either of the grounds that are identified for that purpose in para 3 of the summary and full reasons given by the Industrial Tribunal. There is no need for the Chairman's Notes to be called for. This is a pure issue of law.