Secretary Of State For Employment v McVey [1995] UKEAT 519_95_0512

EAT
Secretary Of State For Employment v McVey
[1995] UKEAT 519_95_0512 · 1995-12-05
MR JUSTICE MUMMERY (PRESIDENT) : This is the preliminary hearing of an appeal by the Secretary of State against a decision of the Industrial Tribunal held at Manchester on 24 January 1995.The Tribunal unanimously decided that a claim by Mrs P McVey against the Secretary of State succeeded. The claim was made under section 106 of the Employment Protection (Consolidation) Act 1978. The Tribunal ordered the sum of £504 as a redundancy payment and, under section 122(3)(b) of the same Act, the sum of £336 by way of notice pay.The Tribunal sent a decision document to the parties on 2 February 1995, in which they described the reasons, as set out in ten paragraphs, as reasons given in "summary form".The Secretary of State served notice of appeal against the decision. That is dated 15 March 1995, but is stamped as having been received by the Employment Appeal Tribunal at about 9 am on 17 March, one day after the expiration of the time allowed by Rule 3 of the Employment Appeal Tribunal Rules 1993 for instituting an appeal.Three questions arise on this ex parte hearing. The first is whether the Secretary of State should be entitled to pursue the appeal on the basis of what are described as "summary reasons". The second is whether the notice of appeal was served in time or one day late and, if late, whether the time should be extended. Thirdly, whether, in any case, the notice of appeal discloses an arguable point of law. If it does not disclose an arguable point of law, no purpose would served in allowing the matter to proceed beyond today, as this Tribunal only has jurisdiction to hear appeals on points of law.Mr Garnham appears for the Secretary of State. He has advanced excellent arguments on all three points. Our conclusions are as follows. First, as to the reasons, this appeal should be allowed to proceed on the basis of the reasons given. Rule 3 of the 1993 Rules provides that every appeal should be instituted by serving on the Tribunal a notice of appeal, a copy of the decision and, in the case of an appeal from an Industrial Tribunal, a copy of the extended written reasons for the decision. Paragraph 10 of Schedule I to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 provides that:
"(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 ... (c) ... by a party after the hearing either - (i) ... or
(ii) within 21 days of the date on which that document was sent to the parties;(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."

We agree with Mr Garnham that the expressions "summary reasons" and "extended reasons" are not terms of art. There is no definition of them in the Rules or in the Regulations. The aim of the rules is that, if an appeal is brought, it is on the basis of reasons which have been fully explained. It cannot be decisive what the Industrial Tribunal has actually called the reasons. What matters is whether the Appeal Tribunal has, in fact, obtained reasons from the Industrial Tribunal on which an appeal can be argued.The first case cited by Mr Garnham in support of his argument is Meek v City of Birmingham District Council [1987] IRLR 250 , in which, in an often cited passage,

Lord Justice Bingham stated that a reasoned decision should:

"contain an outline of the story ... a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion ..."
He submitted that the decision in this case fulfils that description so that, although they are called "summary reasons" by the Industrial Tribunal, they in fact satisfy the Court of Appeal's requirements of a reasoned decision.He also cited William Hill Organisation Ltd v Gavas [1990] IRLR 488 : see the judgment of the Master of the Rolls, Lord Donaldson, in particular paragraphs 7 and 33. In our view, although these reasons are called summary reasons, they are in substance reasons which satisfy the requirements of Regulation 3. We also agree with Mr Garnham that, if that is not a correct analysis, the Employment Appeal Tribunal is entitled to exercise a discretion conferred by Regulation 39 of the Appeal Tribunal Rules in relation to non-compliance with a waiver of the Rules. It is provided by Regulation 39 that:
"(1) Failure to comply with any requirements of these Rules shall not invalidate any proceedings unless the Appeal Tribunal otherwise directs.
(2) 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."On the scope of that discretion, Mr Garnham cited Wolesley Centers Ltd v Simmons [1994] ICR 503 at 507 , a decision on Rule 32 of the earlier Rules. The question whether an appeal should be allowed to proceed in the absence of full reasons is determined by considerations of the justice of the case. If it is in the interests of justice that the appeal should be allowed to proceed and it is possible to argue a point of law on the reasons given, then a waiver of the Rules should be made under Rule 39. We are agreed that this is a case in which the reasons given are sufficiently detailed to justify waiving the requirements of Rule 3, if they have not in fact been observed.The second question is whether the notice of appeal was served in time. The Rule provides that the notice of appeal should be served within 42 days from the date on which the extended written reasons were sent to the Appellant. The 42-day period expired on 16 March. As already indicated, the EAT's stamp date indicates that it was stamped at 9 am on 17 March. We accept Mr Garnham's submission that what matters for the purpose of the Rule is not when the envelope containing the notice of appeal was opened in the office of this Tribunal, nor the date when someone in the office stamped it. What matters is the date on which the notice of appeal was actually served, when it arrived here. An affidavit has been sworn by Mr Brian Porter of the Treasury Solicitor's Department in which he gives details of the daily messenger service operated by the Treasury Solicitor's Department, and of the various hours at which the messenger leaves Queen Anne's Chambers in Westminster. He gives in an exhibit extracts from the outgoing pages of the log for by-hand mail on 16 March 1995. It appears from that that there were two deliveries on that day to the EAT at Audit House. It is stated at the end of the affidavit that the date stamp indicates that the document was received at about 9 am. As can be seen from the details given in the affidavit, the first departure from Queen Anne's Chambers for that day is 9.30 am. It appears from the details given in the affidavit that the probabilities are that the notice of appeal, though stamped 17 March, in fact arrived at this Tribunal on the previous day and, therefore, the notice of appeal was served in time.This case is a warning, however, not only to the Treasury Solicitor but to others, of the risks that are run in leaving the service of notices of appeal until the last day for service. We cannot emphasize too strongly that even one day out of time is out of time. The time will not be extended unless a full explanation is given for being out of time and that explanation amounts to a good excuse which would justify this Tribunal taking the exceptional step of accepting an appeal served outside the 42-day limit.With that warning, we pass to the third and final point, whether the notice of appeal reveals that there is an arguable point of law in this case. We are satisfied that it does and direct that the case proceeds to a full hearing. The arguable point of law is this: whether the Industrial Tribunal correctly directed themselves in law on the evidence of the insolvency of the Applicant's employer. The case may be put in two possible ways: first, that the Industrial Tribunal misinterpreted the correct legal meaning of a composition or arrangement with creditors in the definition of insolvency contained in section 106(5)(a) of the Employment Protection (Consolidation) Act 1978. It may also be put another way, that the Tribunal did not have a correct appreciation of the facts relevant to the definition of insolvency, since it appears from their decision that the only matter they relied upon to determine that the employer was insolvent was a letter referred to in paragraph 5 of the decision dated 14 January 1994. Mr Garnham may wish to argue at the appeal that, if that was the only evidence which led the Tribunal to find that there was a composition or arrangement with creditors then the Tribunal had not correctly understood the facts in that letter.We say no more about it. It will be for the full Tribunal to decide whether that is a good point of law or not. It is reasonably arguable.We direct the matter proceeds to a full hearing. We also direct that the parties exchange and lodge with the Tribunal, at least 21 days before the full hearing, skeleton arguments.