MR G T HOLDEN v C T PLATON LTD [1999] UKEAT 598_99_0410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 598_99_0410Case No Appeal No. EAT/598/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G T HOLDENAPPELLANTC T PLATON LTDRESPONDENT
Before
His Honour Judge J HicksDate 4 October 1999
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRSENTED JUDGE HICKS QC : Mr Holden, the appellant, was employed the respondent employer, C T Platon Ltd, until dismissed in 1998, the effective date of termination of his contract of employment being 18th September 1998.[2]He was dismissed on the ground of redundancy. His section of the employer's staff was concerned with the moulding of glass tubes and there had been a decision to contract that work out, the consequence of which was that there was a diminution in the employer's requirements for employees in the relevant unit.[3]The numbers involved were eight, of whom two were dismissed, including Mr Holden. As a selection tool the employers used a matrix which graded the eight employees in relation to their skills, aptitude, attendance and disciplinary records, and the two persons dismissed, including Mr Holden, were those who registered the lowest scores.[4]He was invited to apply for two alternative positions, but declined to do so, and did not pursue the internal appeal which it appears was available.[5]The tribunal found that the dismissal was for redundancy and considered whether the employer acted reasonably or unreasonably in dismissing for that reason.[6]The tribunal took as its starting point the words of s.98(4) of the Employment Rights Act 1996 and reached its conclusion in paragraphs 5 and 6 of its summary reasons as follows:
"5. In a redundancy situation the factors which a reasonable employer might be expected to consider, include whether any selection criteria were objectively chosen and fairly applied, whether there were warnings and consultation and whether alternative work was available. These are guidelines and do not form rules of law, so that a dismissal in breach of any of them will not necessarily be unreasonable. 6. An employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness, will have done all that the law requires of him. We are not persuaded that the grading system adopted in this case and the way in which it was applied suggests that the Applicant was unfairly selected for redundancy and this application is dismissed."
[7]It is required for the purposes of an appeal that there be extended reasons and the duty lies on the appellant to apply for such extended reasons within the relevant time. The relevant time in this case expired on 16th March 1999. It was not until 26th March that a Notice of Appeal was lodged and not until 7th April 1999 that there was a request for extended reasons.[8]That request, having simply asked for extended reasons, continues:
"We appreciate that we are now outside the time for making this request but would ask whether Extended Reasons might be given in all the circumstances."
That is a letter from Mr Holden's solicitors. They plainly appreciate that they are out of time. Although they ask that extended reasons might be given "in all the circumstances", they do not draw attention to what might be, or what they suggest are, circumstances which would justify the exercise of the tribunal's discretion to extend time.[9]The Notice of Appeal has annexed to it a statement of a case setting out the grounds for appeal and the first paragraph of the grounds states that:
"there is fresh evidence which may cast serious doubt on the validity of the decision."
There is then a recital of the proceedings in the Employment Appeals Tribunal, as the statement of case reads, but that is clearly a slip for the Employment Tribunal, and in the course of reciting the proceedings there, it is stated that the solicitors for the appellant requested prior disclosure of documents from the respondents but the respondent employers rejected that request for disclosure. It is then said that:
"… the Appellant's solicitors applied to the Employment Tribunal for an order for discovery of the skill matrices …"
The Employment Tribunal refused that application on 29th January 1999. That refusal was apparently not appealed; it is certainly not stated in the grounds for the present appeal that that refusal was appealed and there are no documents in the file before us to suggest that any such appeal was lodged.[10]We are concerned with the Chairman's refusal to grant extended reasons. In our view that refusal, which was an exercise of a discretionary power, shows no error of law. The letter applying for the extended reasons recognised that it was out of time, and that extension of time would therefore be required, but gave no grounds whatsoever to explain, excuse or justify the delay or grounds of any other kind why the discretion should be exercised in favour of extension. Moreover, the grounds of substantive appeal now sought to be raised, although expressed to be in terms of new evidence, are not about new evidence at all, as we understand it. This was evidence which the appellant sought to adduce before the Employment Tribunal. The Employment Tribunal refused the application for production of the disclosure of the relevant documents and that refusal was not appealed.[11]This is not in substance or in fact an application for new evidence in the sense of evidence which could not reasonably have been available before the hearing; it is an attempt to appeal wildly out of time the Employment Tribunal's refusal to order disclosure of that evidence at an interlocutory hearing before the substantive hearing of this application. For those reasons we consider that this appeal cannot succeed and should be dismissed. We do that in the absence of the parties, because the appellant has not appeared and is not represented and has made no application for an adjournment of today's hearing.