Bamgbose v The Royal Star & Garter Home [1996] UKEAT 841_95_1505

EAT
Bamgbose v The Royal Star & Garter Home
[1996] UKEAT 841_95_1505 · 1996-05-15
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of two appeals. The applicant presented an application to the Industrial Tribunal on 22nd August 1994. He claimed that he had been unfairly dismissed and was the victim of race discrimination by his former employers, the Royal Star & Garter Home at Richmond.In his application he stated that he had been employed as a staff nurse from 3rd November 1991 until 6th June 1994. He stated in detail, which it is not necessary to repeat, the reasons why he alleged that he had been unfairly dismissed and that there was an element of race in that decision.On 6th December 1994, the Industrial Tribunal at London (South) decided a preliminary question as to whether the applicant satisfied the conditions of Section 64 of the Employment Protection (Consolidation) Act 1978 , namely whether he had a continuous period of employment of not less than two years beginning with the effective date of termination.At that hearing the applicant was represented by a solicitor, Mr Walker. The Royal Star & Garter Home were represented by Counsel.The tribunal, in extended reasons notified on 19th December 1994 unanimously decided that the applicant did have sufficient qualifying service to bring a case of unfair dismissal. There is no appeal against that decision.The next decision was reached after a hearing on 20th March 1995 by a differently constituted Industrial Tribunal at London (South) chaired by Lt. Col. DWH Brayden. At that hearing Mr Walker again represented the applicant. A different Counsel represented the respondent home.The tribunal's decision on that hearing, fixed as the first day of a two day hearing of the substantive claim, was explained in the summary reasons sent to the parties on 30th March 1995. The summary reasons recorded that the applicant withdrew his complaint of racial discrimination. The tribunal unanimously decided to dismiss that application on it being withdrawn. There is no appeal against that order.The second matter, on which there is an appeal, is that the tribunal unanimously decided that the applicant did not have sufficient continuity of service to support his complaint of unfair dismissal. On the face of it, that is contradictory to the earlier decision, by a different Industrial Tribunal in the same case, that he did have sufficient qualifying service. However, as appears from the summary reasons for that conclusion, they are different reasons than those for the contrary earlier decision. The reasons are stated in paragraph 3:
"3. New evidence before the Tribunal was that the Applicant did not obtain permission to work in the United Kingdom until 27 January 1993. His employment before that date was illegal under section 3 of the Immigration Act 1971 and Rule 131 of the Immigration Rules. It is arguable that his contract of employment was tainted by illegality throughout but we prefer the Respondent's alternative submission that the contract was severable and accordingly tainted by illegality until 27 January 1993 but not thereafter."
The "not thereafter" cut off point did the applicant no good, because what was left after 27th January 1993 was less than the two years necessary to satisfy the minimum qualifying period. For those reasons the tribunal dismissed the whole complaint.What has happened since is very unfortunate for the applicant. The applicant served a Notice of Appeal on 11th May 1995 against the decision (the `Illegality Decision'.) The grounds of appeal are stated in summary form that the Industrial Tribunal erred in law in that its decision was upon new evidence tendered to it which maintained that the applicant was illegally in the United Kingdom in accordance with Section 3 of the Immigration Act 1971 and Rule 131 of the Immigration Rules. The tribunal failed to consider properly Rule 132 of the those rules. It is also stated that the late submission of the purported evidence in respect of the invalidity of the contract of employment was wholly and unfairly prejudicial to the appellant's application for unfair dismissal. There are other detailed points taken which the appellant wishes to argue on the appeal.Unfortunately, although the appellant was represented by Mr Walker at the Industrial Tribunal, no request was made at the hearing on 20th March 1995 or within the time allowed by the Industrial Tribunals Rules of Procedure, for the extended reasons. The legal position under the rules is clear. If you want appeal to this tribunal you must comply with the rules of the Employment Appeal Tribunal Regulations 1993 . They provide in Regulation 3:
"3.-(1) Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal the following documents:- (a) a notice of appeal ... (c) in the case of an appeal from an industrial tribunal, a copy of the extended written reasons for the decision or order of that tribunal."
That was not done, as was pointed to the appellant's solicitors in a letter dated 18th May 1995. Mr Walker informed us that the letter was not received by his firm until 15th June 1995. That letter pointed out:

"that without extended written reasons an appeal cannot properly continue"

That is subject to one qualification to be mentioned later.Following receipt of that letter, (and after another two weeks from the receipt of that letter) a letter was written dated 29th June 1995. We were informed by Mr Walker that that was the first request to the Industrial Tribunal for the extended reasons. The letter was responded to promptly by the Industrial Tribunal on 4th July 1995. They acknowledged the letter, which was referred to the Chairman who had presided at the hearing on 20th March 1995, and stated:
"I regret to inform you that the Chairman is not prepared to supply extended reasons after such a lapse of time. Any request should have been presented to the Tribunal within 21 days of promulgation of the Decision (30 March 1995)."
The application for extended reasons was not made until 29th June 1995.That refusal by the Chairman to provide extended reasons prompted another appeal served on 4th August 1995. The Notice of Appeal states that there was an error of law on the part of the tribunal in refusing to supply the extended reasons in respect of an appeal lodged in the appeal tribunal within the 42 day period from the illegality decision.Those are the two appeals. Ee must decide each separately.First, the appeal against the refusal to supply the extended reasons. We asked Mr Walker why he had not applied for the extended reasons within the time limits laid down in the Industrial Tribunal Rules of Procedure. His answer was that he did not ask for the extended reasons because he thought that the summary reasons were sufficient and was not of the view that extended reasons were necessary.This is not a satisfactory explanation for failure to comply with the Rules of Procedure. The Rules of Procedure are clear. If they are not known, they can easily be ascertained. The Rules were not complied with. The Chairman was legally entitled to refuse to supply extended reasons when the Rules were not complied with and no satisfactory reason was given to him for non-compliance with the Rules. It is not a satisfactory reason that an applicant's solicitor does not think he needs extended reasons. It is not a satisfactory reason that the substantive appeal has been lodged in time. The rules require that the appeal must not only be lodged in time. The appeal must be accompanied by the extended reasons which are necessary in almost every case for the proper resolution of the appeal.We dismiss that appeal, because there is no error of law on the part of the tribunal Chairman in refusing the full reasons requested.Next, the appeal on the illegality point.On a strict reading of the appeal rules that should also be dismissed, because there has been no compliance with the requirement of the provision of extended written reasons. As we have dismissed the appeal from the refusal to give those reasons, there will never be compliance with it. But the rules are not as strict as they appear to be, because, as Mr Walker correctly pointed out, there is provision in the rules for waiver of non-compliance. It is provided in Rule 39 of the Employment Appeal Tribunal Rules 1993 :
"39.-(1) Failure to comply with any requirement of these Rules shall not invalidate any proceedings unless the Appeal Tribunal otherwise directs."
The scope of this was considered in the case cited by Mr Walker Wolesley Centers Ltd v Simmons [1994] ICR 503 . That decision was under the previous rules of this tribunal, the 1980 Rules, but the present rules are not materially different. The appeal tribunal in that case decided that the appeal tribunal has a discretion to allow an appeal to proceed in the absence of full reasons and may exercise that discretion where the tribunal is of the view that it is fair to deal with the matter in the absence of extended reasons. In the judgment of the tribunal the discretion is described at page 507 in these terms:
" In our judgment, it is clear from rule 32 and from the decision in William Hill Organisation Ltd v. Gavas that the appeal tribunal has a discretion whether or not to allow an appeal to proceed in the absence of full reasons. In that case the appeal tribunal has "come to the conclusion that, in the absence of full reasons, it was quite impossible to adjudicate on the matter being urged by way of appeal" and so refused to hear the appeal."
The issue is whether the absence of full reasons make an appeal non-justiciable. If it was possible, on the basis of the summary reasons alone to adjudicate upon the appeal on a question of law, then the tribunal may exercise its discretion. In doing so it has to consider the risks of unfairness. Would it be unfair to the appellant to deny him an appeal simply because there has been non-compliance with the rules, when it is possible on the basis of the summary reasons to argue a question of law. We have to look at the unfairness there would be to a respondent in allowing the matter to proceed in the absence of extended reasons.On this aspect of the case, we have reached the conclusion that this case should proceed to a full hearing in the absence of written extended reasons. The appellant, or those advancing his appeal, may encounter substantial difficulties in advancing certain lines of argument on the appeal without the benefit of findings of fact in extended written reasons.Nevertheless, we think that the appeal ought to proceed for a number of reasons. First, the alleged illegality in non-compliance with the Immigration Act and Immigration Rules is a novel point. None of us are aware of any decision at any level on this point. Secondly, the account of the hearing before the Industrial Tribunal given by Mr Walker does give rise to some concern on the part of this tribunal that there should be a further enquiry about the way in which this point was raised and decided. The position, as we understand from Mr Walker, is that the point which had the drastic effect of ruling his client's case completely out of the tribunal was decided solely on the basis of one document, namely a letter from the Immigration and Nationality Department dated 25th January 1993 and some legal submissions. We understand that the document in question came into Mr Walker's hands a few days before the hearing. When the hearing took place, there was no evidence given either by the appellant or the respondents on this issue. Our understanding from Mr Walker's account of the hearing is that this document was simply placed before the tribunal; there were then submissions by reference to Chitty on Contracts (no doubt the chapter in that book on illegal contracts); and that this matter was then considered by the tribunal when they withdrew to deliberate upon the case. We are concerned to enquire further into the circumstances in which it was decided that the appellant's case was dismissed in its entirety in this way.Thirdly, we have considered the cases cited by Mr Walker in his written submission to this tribunal on the effects of illegality. Although it is not for us to decide this question today, we consider that there are possible arguments that it does not always follow that, because there was an element of illegality in a situation, the consequences that a person has no employment rights. It may depend on all the circumstances of the case such as, the state of knowledge of the parties, the nature of the illegality in relation to the rights asserted and so on.There may be serious difficulties in deciding this point in the absence of extended reasons. That is a risk that the appellant takes through not having asked for them and obtained them pursuant to the procedure. We allow this part of the appeal to proceed on that basis.We have also considered whether we should ask the Chairman of the tribunal to provide notes relating to the second hearing on 20th March 1995. We make no decision on that now. We mention it as a point for Mr Walker to consider. If he thinks that the provision of those notes is necessary for the purposes of arguing this appeal, then he should make a written application to this tribunal requesting the notes and should set out the reasons why it is submitted that they are necessary for the full appeal.The illegality appeal will therefore proceed to a full hearing at which the matter will be argued on both sides before we reach a decision.Finally, we mention the question of bias. The submission in the skeleton argument of Mr Walker is that the Chairman of the Tribunal which reached the decision should deal with allegations of bias which have been raised, based on the Chairman's service the Armed Forces which the Star & Garter Home in these proceedings exist to represent and assist. We have discussed this matter with Mr Walker. We have considered the allegation in relation to the material available. We do not allow the appeal to proceed on this basis. A point of bias should only be raised where there is an appearance of a real risk of bias based solid evidence. In our view, it is flimsy basis for raising an allegation of bias that the Chairman of the tribunal is a retired Army Officer and that the respondent is connected with the Armed Forces. There is no evidence of any association between them. We are not satisfied that there is any arguable case for the bias allegation. We do not think that it should have been raised at all. We do not allow the appeal to proceed on that point.The order is that we dismiss the appeal against the refusal to supply extended reasons. We allow the appeal on the illegality point to continue. A date will be fixed in due course for the hearing of that appeal. We do not allow the appeal to continue on allegations of bias against the Chairman of the tribunal.