Campbell v Wainwright [1998] UKEAT 456_97_1302

EAT
Campbell v Wainwright
[1998] UKEAT 456_97_1302 · 1998-02-13
MR JUSTICE KIRKWOOD : This is an appeal by Mrs Campbell from a decision of an Industrial Tribunal sitting at Sheffield on 12th February 1997 unanimously rejecting her application for a review of an earlier decision as being presented out of time.The factual background to this appeal taken as best we can from reasons found by the tribunal are these. (I should say that the tribunal that rejected the application on 12th February was constituted in the same way as the tribunal that made the primary decision in the case on 20th December 1996.)The appellant was employment by the respondent as a domestic cleaner at his private home in Sheffield, and also to do ironing at his professional address in Sheffield where the respondent was in practice as an Osteopath. The appellant worked, in all, on one day a week for a total of four hours.In the Summer of 1996 there was evidently some unpleasantness which led to the appellant's employment coming to an end and led to her making complaint to an Industrial Tribunal as to, in particular, unfair dismissal, and she did that on 6th August 1996. Her application to the tribunal was accompanied with a statement in very considerable detail that she had prepared herself.The nub of the complaint was of constructive dismissal. The appellant said, as summarised by the Industrial Tribunal, that she had been treated unreasonably by Mrs Wainwright, who had attempted to ease her out of her job. In particular, the appellant said that Mrs Wainwright had unreasonably revoked a term of the employment which had allowed the appellant, Mrs Campbell, to take her eight year old daughter with her when she went to work.The hearing was fixed for 20th December 1996. At 8.55 a.m. Mrs Campbell telephoned the tribunal to say that her daughter had earache and had to be taken to the doctor. She said she could not be present and wanted the tribunal to consider an adjournment.The respondents attended for the hearing appointment having had no advice not to do so, and there was another witness apparently also available. We know from elsewhere in the papers that Mrs Campbell's quite recently estranged husband attended to give evidence.The tribunal decided that having regard to the considerable written material they had from the appellant, and the presence of Mr and Mrs Wainwright whom the tribunal noted both to be 78 years old, that it would not be fair to the respondents for this worrying case to be adjourned and so they proceeded to hear it.They heard evidence from Mrs Wainwright, by whom they were plainly impressed. They considered all the written material that the appellant had sent in, and then said this:
"8. ... We can see no basis for saying that there was a term in the applicant's contract of employment that she could bring her child to work with her and we can see no evidence to suggest that the respondent or his wife were in breach of any of their obligations under that contract."
Those strong words "no basis for saying" and "no evidence" were used in the light of all the material they considered. So the tribunal found that the appellant was not entitled to leave her employment without notice by reason of the employers' conduct, and that she had not been constructively dismissed. So her application failed.The final paragraph of the extended reasons that were in fact sent to the parties on 23rd December 1996, contains this:
"11. The applicant is reminded that as this case was heard in her absence, she may apply to this tribunal for this decision to be reviewed. Any such application may be made to the Secretary at any time from the date of this hearing until 14 days after the date on which this decision was sent to the parties and the application must be in writing stating the grounds in full."
Later on the morning of 20th December Mrs Campbell arrived at the offices of the Industrial Tribunal to be told, as was the fact, that the case had been concluded and she was told the outcome and she was advised of the remedies and procedures available to her if she were dissatisfied by the decision.The Industrial Tribunal later noted that whilst Mrs Campbell agreed that she had attended the tribunal after the case had been concluded, she denied receiving any advice as to procedures. However, the later finding of the tribunal on 12th February 1997, was as I have indicated, that she was advised. What Mrs Campbell has denied is that she was given written advice. She accepted that she had had a conversation with someone in the office.The extended reasons for the tribunal's decision were, as I have said, sent out on 23rd December 1996. The time for applying for a review expired on 5th or perhaps 6th January, and we will treat it as the 6th January 1997. Also on 23rd December 1996 Mrs Campbell apparently went on holiday. She had done nothing prior to going on holiday to set in train the review process. She returned on 6th January 1997 to find the tribunal's extended reasons for the decision of which she already knew, to be on her doormat.On 7th January 1997 Mr Wainwright telephoned the office of the Industrial Tribunal and asked to know whether a review had been requested. He was assured that no application had been received and the file, he was told, had been put away.On the next day Mr Court, who had represented Mr and Mrs Wainwright on 20th December 1996, also telephoned and was told the same thing. However sometime in the afternoon of 8th January 1997, as appears we must inevitably infer after the office had closed, Mrs Campbell put through the letter box her application expressed to be in terms of a desire to appeal against the decision. That was received by the tribunal on 9th January 1997. That is a letter in manuscript form. There is nothing wrong with that at all except to observe that it was not a document sent in by a solicitor.The Industrial Tribunal heard the application to review on 12th February 1997 and recited the material facts, to which I have referred. It reminded itself of the relevant rules of procedure. It recorded that Mrs Campbell said:
"8. ... she was unable to deal with the application for a review on 7 January because she had to take her daughter back to school at the start of the new term."
The tribunal concluded:
"10. ... the applicant had sufficient time to make this application within the period of 14 days. She could have indicated her intention to apply by a telephone call or a brief message.
11. In our view the rules are designed to provide finality to litigation and the respondents are entitled to rely on them for their own peace of mind.12. Having considered all the circumstances and re-read our original decision we find that it would not be fair or reasonable to extend time prescribed by rules. We conclude that this application for a review is out of time and that it must be rejected."The relevant rules are to be found in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 :
"11.-(1) Subject to the provision to this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that-
...

(c) the decision was made in the absence of a party;"

It was under that Rule that the Industrial Tribunal considered this review.It must be plain, because it is inherent in that Rule, that the Industrial Tribunal had in its mind the circumstance that the decision of 20th December 1996 had been made hearing one side only and that Mrs Campbell had not had the advantage of verbalising her case before them.Rule 15 deals with extension of time:
"15.-(1) A chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules and may do so whether or not the time so appointed has expired."
We remind ourselves that the provision as to time in Rule 11 for applying for a review is that the time runs from the date of the hearing, that is to say from 20th December 1996, and expires 14 days after the extended reasons have been promulgated. It follows as a matter of fact, that Mrs Campbell could have written her letter asking for the decision to be reviewed at any time from 20th December 1996 onwards.The decision of this Appeal Tribunal is a majority one.It is recognised on the appellant's behalf that the decision as to extension of time is one that lies within the discretion of the Industrial Tribunal. This Appeal Tribunal must be slow to interfere with the exercise of discretion unless it is demonstrated that discretion has been exercised in a way in which no reasonable tribunal properly directing itself could have done. Ms Moor, for the appellant, argues that in two ways the Industrial Tribunal did not properly direct itself.Miss Moor referred us to the decision of the then President of the Employment Appeal Tribunal, Mummery J, in the decision of the Employment Appeal Tribunal in Kwik Save Stores v Swain [1997] ICR 49 . There, and in the circumstances of that case, the learned President considered the precepts that should be applied in exercising the discretionary function. Two of the matters that the learned President referred to were prejudice and merits. The President said this:"An important part of exercising this discretion is to ask these questions: what prejudice will the applicant for an extension of time suffer if the extension is refused? What prejudice will the other party suffer if the extension is granted?" [Page 55C]One of the criticisms made of the extended reasons of the Industrial Tribunal is that whilst prejudice to the respondent is referred to in terms, prejudice to Mrs Campbell by not allowing an extension is not.I have already said that it is implicit in the Rule (allowing provision for a review) that the fact that the decision was made in absence of the party, which is the Rule upon which the tribunal is focusing, must lead to the inevitable conclusion that that is a matter in the mind of the tribunal whether it expresses it in terms or not. So when in the extended reasons of the tribunal one sees specific reference to the prejudice to the respondents, that is not, in the judgment of the majority of this tribunal, any demonstration that the tribunal did not have the prejudice both ways and applicable to both sides in its mind.The second matter to which Miss Moor particularly referred was a further passage in the judgment of the learned President which deals with the question of merits. The President said this:
"It is well established that another factor to be taken into account in deciding whether to grant an extension of time is what may be called the merits factor identified by Sir Thomas Bingham M.R. in Constellow v. Somerset County Council [1993] 1 W.L.R. 256, 263: ...
. .. This does not mean that a party has a right to an extension of time on the basis that, if he is not granted one, he will be unjustly denied a hearing. The applicant for an extension had only a reasonable expectation that the discretion relating to extensions of time will be exercised in a fair, reasonable and principled manner. That will involve some consideration of the merits of his case."That, as I understand, was a case in which the respondents were out of time for putting in their response to a complaint to an Industrial Tribunal and it was in that context that the case was being decided.Miss Moor argues that the Industrial Tribunal here did not refer to the merits at all. Whether that submission is strictly accurate I am not sure, because one of things the Industrial Tribunal did and said it did, was to re-read its earlier decision. However, an Industrial Tribunal in an instance such as this, is in the difficulty that if it expressly refers to the merits as it has found on an earlier hearing, its decision will be challenged on the ground that it was prejudiced. If an Industrial Tribunal is silent as to the merits on the basis that, perhaps, it deliberately ignores its earlier decision or prefers to approach the question of merits in the circumstances as a neutral consideration, it is open to challenge on the ground that it has not mentioned the matter of merits specifically.The majority view of this tribunal is that in the circumstances of this case, which I have outlined, the absence of any specific mention of merits in the extended reasons of the decision of 12th February 1997, is not fatal to it. What is clear is that the Industrial Tribunal, on 12th February 1997, considered all the circumstances and considered what, in its judgment, would be fair and reasonable in all those circumstances of this case.It follows from what I have said that the majority of this Appeal Tribunal, whilst recognising and reminding ourselves that we must not make our own judgment or substitute our own judgment of what we might have done in the Industrial Tribunal's shoes, have reached the conclusion that the exercise of discretion by the tribunal in this case is one with which we should not interfere.The minority view formed, having heard arguments for the appellant this morning, is to a different conclusion. The minority view is that the failure of the Industrial Tribunal to spell out in its extended reasons questions of prejudice on both sides and its failure to address specifically the merits of the case, are fatal flaws in the extended reasons of the Industrial Tribunal. The minority would therefore allow the appeal and remit the case to another Industrial Tribunal to consider again the application for review and consider again in that context, inevitably, the question of extension of time, bringing into its consideration the question of balance of prejudice and its view on merits.The majority view, however, prevails with the result that this appeal is dismissed and with it, so far as this Appeal Tribunal is concerned, the case comes to an end.