Mahmood v Jang Publications Ltd [1997] UKEAT 561_97_0311

EAT

Mahmood v Jang Publications Ltd

[1997] UKEAT 561_97_0311 · 1997-11-03

MR JUSTICE MAURICE KAY : This is listed as a preliminary hearing of an appeal against a decision of an Industrial Tribunal held at London (South) the hearing having been on 10th and 11th December 1996, and 4th February 1997.

The appellant had claimed unfair dismissal and unlawful deductions from his wages. The Industrial Tribunal dismissed his applications in a decision that was sent to the parties on 17th March 1997. He had been represented before the Industrial Tribunal by Counsel instructed by the in-house solicitor of the National Union of Journalists.

When the matter was called on today, the appellant was represented under the ELAAS scheme by Ms Ellenbogen. She immediately conceded that the present appeal is not properly constituted under the Rules because this appeal tribunal has not been put in possession of extended reasons for the decision of the Industrial Tribunal. The document accompanying the Notice of Appeal contains only summary reasons.

If one considers the history of the matter on the face of the documents in the bundle, we observe that the decision of the Industrial Tribunal had been sent to the parties on 17th March 1997 and there is document with a date stamp of the Regional Office in respect of London (South) referring to 21st April 1997. On that day the appellant wrote to the Industrial Tribunal asking for a copy of the full decision. We assume this to be a reference to extended reasons. He indicated in a letter that he was attempting to appeal, and that this appeal tribunal had asked him to submit a copy of the full decision. That letter is dated 21st April 1997. The bundle also contains a letter dated 24th April 1997 which notified the appellant of a refusal on the part of the Industrial Tribunal to supply extended reasons. It is in the following terms:

"I am instructed by the Chairman to inform you that your written request of 21 April 1997 that the reasons for decision of the Tribunal be given in extended form has been refused because it does not comply with Rule 10(4)(c) of the Rules of Procedure set out in Schedule 1 to the Industrial Tribunals (Constitution and Rule of Procedure) Regulations 1993 in that it was not made either (i) before the document recording the reasons in summary from was sent to the parties or(ii) within 21 days of the date on which that document was sent to the parties."

It is clearly the case that the time limit for requesting extended reasons, assuming they have not been requested prior to the promulgation of summary reasons, is that of 21 days from the date upon which summary reasons are sent to the parties. It is equally clear that the Industrial Tribunal regulations do permit an extension of time.

In addressing us today Ms Ellenbogen, having conceded that the present appeal is not properly constituted, has invited us to approach the matter in a different way. She has invited us to treat today's hearing with leave as an appeal against the refusal to provide extended reasons, and she has further invited us, if we should give leave and hear the appeal today, to order the Industrial Tribunal now to provide extended reasons and thereafter, to extend time for a properly constituted substantive appeal to be presented to this appeal tribunal.

She has helpfully outlined the instructions which she has received this morning by way of explanation for the failure to meet time limits in the past, and she has offered to call the appellant to give evidence on oath to confirm those instructions.

We have not considered it necessary to hear the appellant on oath, for the simple reason that we are entirely content to accept, at face value, what we are told about the instructions that Ms Ellenbogen has received.

Having indicated that the appellant received a copy of the decision in summary form on or about 21st March, his case is that the National Union of Journalists thereupon refused to assist him any further in the matter. He is a person whose first language is not English, and he reports through Ms Ellenbogen, some bewilderment and ignorance of the appeal procedures and opportunities. His case is that after 21st March 1997 he did nothing about an appeal and knew nothing about the machinery for appealing until about 18th April when, as chance would have it, he was walking past this building and saw the name of the Employment Appeal Tribunal on the plate by the front door. That, we are told, was a Friday, and on the following Monday, 21st April, he came in and sought to set this appeal in motion.

He did so by a hand-written document, or at least, the hand-written completion of the printed pro forma, in which he referred to three proposed grounds of appeal. They read as follows:

"1). The respondent refused to Industrial Tribunal to provide the documents of those terms and conditions under which chief editor (Mr Shakil-ur-Rehman) gave me job and fixed salary.

2. Main character chief editor (Mr Shakil-ur-Rahman) who in person settled agreement did not appear in court equally.

3. Management from respondent told untrue to court after taking oath."

It seems that one way or another the appellant's case which he would wish advance to this tribunal centres upon the facts that Mr Shakil-ur-Rahman did not give evidence, and the assertion that somebody from the respondents gave evidence that was untrue.

Underlying Ms Ellenbogen's submissions, we take to be the submission that in the light of all that has taken place, Mr Mahmood should now be permitted to proceed.

We accept entirely from Ms Ellenbogen the instructions which she has received and we further accept that the regulations which apply in the Industrial Tribunal and the regulations which apply in the Employment Appeal Tribunal, would make it possible for us to approach the matter as she invites us to do. What we have had to consider is whether this is an appropriate case in which to accede to those submissions.

In our judgment, it is not. In order for us to contemplate an appeal against the refusal to provide extended reasons, we would need to be persuaded that the refusal was based on legal error. Clearly the terms of the letter dated 24th April 1997 correctly identify the statutory provision which deals with the time limit.

The submission made or implied by Ms Ellenbogen, is that the Industrial Tribunal did not consider extending time, possibly because the letter by which they were asked for extended reasons did not in terms request an extension of time.

We do not consider that there is anything in that point. Clearly the letter itself was out of time, and it followed that it was implicitly requesting an extension of time as Ms Ellenbogen states. We are quite sure that the Industrial Tribunal would in this, as in all cases, be aware of their power to extend time, but since no reason, let alone a compelling reason was put forward for extending time, it does not surprise us at all that the Industrial Tribunal thought it inappropriate to do so in this case.

It follows from this that we are not willing to allow an appeal against the decision not to provide extended reasons.

We have invited Ms Ellenbogen to indicate to us the nature of any substantive appeal which she might have been minded to pursue at a future date. Whilst politely suggesting that that would be to put the cart before the horse, she does advert to a possible ground based on perversity derived from the written grounds in the original substantive appeal to which we have already referred. This seems to us to be little more than a fishing expedition. At the moment there is nothing on paper which is suggestive of any meritorious ground of appeal. In all the circumstances, we have come to the conclusion that it would be futile to approach the matter as Ms Ellenbogen has invited us to do.

We say that with no discourtesy to her, because she has, as one would expect, conducted the appeal on behalf of Mr Mahmood with considerable skill and ability. However, the appeal is dismissed.