MR M H MATTHEWS v THE KEY COMPUTER COMPANY [2000] UKEAT 0436_00_0906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 0436_00_0906Case No Appeal No. EAT/0436/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M H MATTHEWSAPPELLANTTHE KEY COMPUTER COMPANYRESPONDENT
Before
His Honour Judge J Altman Mr Gibbs Miss D WhittinghamDate 9 June 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON. HIS HONOUR JUDGE ALTMAN: This is an appeal from the decision of the Employment Tribunal Chairman, communicated by letter from the Employment Tribunal's office in Birmingham on 21 March 2000, refusing the application of the Appellant for extended reasons to be given of the original decision of the Tribunal. On 8 October 1999 the Employment Tribunal by the Chairman sitting alone had found that they had no jurisdiction to hear the Appellant's claim of unfair dismissal because at the time of dismissal he was employed under a contract of employment whereby he ordinarily worked outside Great Britain. That decision had been set out in a document headed 'summary reasons' and was promulgated on 19 October 1999. The request for extended reasons was to the day some 5 months later. The last date for a written request to have been made within the rules so as to be in time was 9 November 1999.[2]This matter comes before us by way of preliminary hearing to determine whether there is an arguable point of law to justify a full hearing before the Employment Appeal Tribunal. The first matter that we are asked to consider is whether leave should be given to the Appellant to amend his original Notice of Appeal, to provide for an appeal from the Chairman's refusal to provide extended reasons. Even though the Respondents have not been asked to argue that matter fully and even though technically that matter has been listed as a preliminary hearing, we resolve that we should grant leave at this stage, which we did at the outset, so that the essence of the appeal could be argued before us.[3]The first matter that we considered is whether in fact the summary reasons were extended reasons, even though they were described as summary reasons. The regulations that provide for the form of reasons and decision making are contained in the Employment Tribunals' (Constitution and Rules of Procedure) Regulations 1993. Regulation 10 (4) of those regulations provides ' the reasons for the decision of the Tribunal shall be given in summary form'. There is then provision for the provision of what is called 'extended reasons' in regulation 10 paragraph (4) (b) which provides for such a request to be made orally at the hearing or under (c) where: "Such a request is made in writing by a party after the hearing either within 21 days of the date on which that document were sent to the parties." the document being referred to being the original decision of the Tribunal. The rules on appeal are contained in the Employment Appeal Tribunal Rules 1993 and regulation 3 provides for the institution of the appeal and paragraph 1 provides: 'Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal the following documents: a)….. b)…. 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.' Industrial Tribunals are now known as Employment Tribunals.[4]The person wishing to appeal therefore has to have quite an intimate knowledge of the detailed complicated rules of procedure, if he or she is not to fall foul of the requirement for extended reasons. It means in effect that he has 21 days in order to appeal. In truth the law has given the parties 42 days to appeal from the promulgation of a decision of the Employment Tribunal. But unless the proposed Appellant knows that he needs extended reasons and unless he happens to apply for extended reasons within the 21 days, he is then bound to approach the Chairman to ask for discretion to be exercised by the Chairman to provide written reasons out of time.[5]That is a quirk of the law, but in a sense it is an inevitable quirk no doubt, because extended reasons must be true reasons. For a Chairman, either sitting alone as in this case, or if sitting with members as in most cases, to have to sit down some weeks or months after a decision to try to remember what the full reasons were for a decision is in practical terms a very difficult if not impossible task. There is also of course the grave risk that such an exercise, long after the event, would effectively be a rehearing or a reconsideration and it would be very difficult for the Chairman and members to be able to know what their reasons were at the time of the decision as distinct from their reasons when the extended reasons are being formulated. So we can understand the very short period of time given to apply for extended reasons.[6]That is the legal background to this application. The factual background is that at the time of the hearing the Appellant was working abroad and was not able to be present. His father was there to do his best to represent his son, but was not as we understand it experienced in the ways of Tribunal procedure. On the morning of the hearing two very substantial witness statements were produced by the Respondents. Because of their lateness, and because the Appellant was not there if the statements were to be admitted as such, it was quite impossible for him to either to know in advance the detailed matters that were going to be raised at the hearing, or to be able to deal with them on the day.[7]Accordingly, it may be that the Appellant was placed in some considerable difficulty at that moment. But we are told that rather than appeal for an adjournment, the Appellant's father enquired of the Chairman if he could appeal should the matter go against him and was told that he could appeal as far as the House of Lords if he wanted to. Of course, that is the father's recollection of what was said at a time when he was in an environment which he would, no doubt have felt difficult. We have no knowledge as to whether or not that is an accurate and full account of everything that was said on that issue. But following such exchange as there was, the hearing proceeded. Summary reasons were given and the relevant paragraphs were these: 2. "In or about November 1998, it was agreed that the (appellant) should go to Australia to develop a dealership there and he left Great Britain. It was intended that the move should be permanent and the (appellant) continue his duties in Australia." 3. "Consequently, at the time of his dismissal the (appellant) was employed under a contract of employment where he ordinarily worked outside of Great Britain."[8]We have asked ourselves whether in fact that should be treated as the extended reasons so as to form a basis for an appeal in any event. But we have come to the conclusion that that is not possible. On the face of the decision, if that were the extended reasons, it would in the minds of any experienced Chairman or Employment Appeal Tribunal to raise a number of questions. If duties were continuing, why should one simply look at the agreement for the transfer of employment at one point in time as the only answer? The real answer may well lie behind those summary reasons, within what would have been extended reasons, giving the Chairman's full analysis of the evidence. So it is quite impossible for us to countenance a fair appeal hearing taking place, treating those three sentences as the extended reasons of the Employment Tribunal.[9]It is therefore essential, if this appeal is to proceed, for the Appellant to establish that in refusing extended reasons, the Employment Tribunal made an error of law. The history is as follows. Mr Matthews, who has put his arguments succinctly but comprehensively before us, points out that at the hearing itself the Chairman would already have known that he would be contemplating the possibility of an appeal. It was only for the purposes of the appeal in due course that he sought extended reasons, but he did not know, he says, that he required extended reasons for that purpose. We are told that on 23 October 1999 the Appellant sent a fax to the Birmingham Tribunal questioning the use of the witness statements and the appearance of witnesses at the main hearing and making new comments, which had not been raised at the preliminary hearing. He also makes the point that when the decision was promulgated on 19 October, no notes or guidance on appeal were attached. On 12 November he sought a review. On 26 November that was refused but again the Appellant says there were no notes relating to his rights of appeal or guidance enclosed. On 23 January 2000, he tells us that he faxed a letter to the Tribunal asking for a further review of the original review decision, with some new points including case precedents, and asking for details for the steps to take to lodge an appeal against the original decision.[10]On 31 January a letter from the Employment Tribunal was received which pointed out that there was no machinery to further review a decision but again no reference to notes of appeal were enclosed. On 2 February 2000 the Appellant wrote to the Employment Tribunal in Birmingham asking what steps he should take to appeal. I will refer back to his letter of 23 January. On 29 February he received a letter pointing out that the Employment Tribunal could not advise parties but saying that there were notes attached about rights of appeal. But the Appellant says that he did not receive them, and he made this point in a further fax of 5 March. It was not until on 17 March 2000, the Appellant says that his sister on his behalf went to the offices of the Employment Tribunal in Birmingham and he obtained the notes of appeal.[11]The following day, having read the notes, the Appellant's sister phoned and got the appeal forms from the Employment Appeal Tribunal and on 19 March, the Appellant sent a letter to the Tribunal asking for extended reasons. That letter is in the bundle before us and we have considered it in some detail. It is at page 7 and it is important for our considerations to quote it in full:
"Please could you provide my representative, Melissa Matthews, as a matter of urgency, a copy of the extended reasons for the decisions given in respect of the Preliminary Hearing held on 8 October 1999 and review decision of 24 November 1999, as I have not received this as yet. My reason for the urgency is that these are required by the E.A.T. With reference to your letter dated 29 February 2000, paragraph 3 thereof, I received no 'notes of right of appeal' and definitely did not receive the information that I now have been sent by my representative. This was only received after my representative made a personal visit to your Birmingham office on my behalf. As you will appreciate the non-receipt of these items has greatly delayed my appeal. I had made faxed requests on 12 November 1999, 23 January 2000, 2 February 2000, and a telephone call on 24 February 2000 and none of the documents, only now given to my representative, were provided to me. I would therefore appreciate it if you could provide the information as requested above as soon as possible. Your assistance on this matter would be much appreciated. "
It was in response to that letter that the refusal to provide extended reasons was given, in the letter to which I have referred in which it was said:
"The Chairman has directed me to inform you that your request for extended reasons has been received considerably past the time limit for such requests. The Chairman is not prepared to accede to the request without an order of the Employment Appeal Tribunal."
[12]The first thing that needs to be made clear is that it is not for the Employment Appeal Tribunal to make orders for extended reasons. This is an Appellate body which has to scrutinise the actions of Employment Tribunals, to determine where they have not acted within the law, in relation to actions that they have taken or decisions or orders that they have made. That is our sole consideration at the present time. On the face of it the request was a very long time after the original decision. We can envisage the enormous difficulty that would follow if the Chairman were to try to reconstitute true and genuine extended reasons after such a delay. Where there is only a short delay, obviously, the position is different. In this particular case the period for appealing had passed in any event by the time of the request and there would need to be an extension of time in that respect as well.[13]The Appellant says:
"But this case is different because the reason why there was such delay was essentially the fault of the Employment Tribunal."
He points out that it was not until he knew about the rules for appeal that he realised that through his sister that extended reasons were needed and the reason that he did not know about the rules for appeal until then, is he says because of the failure of the Employment Tribunal to send him the guidance notes which they claim to have sent and which it is the practice of Employment Tribunals, in accordance with the Citizens Charter and general principles to send out to parties appearing before them. It is most unfortunate in this case that the Appellant did not know of the rules and we can sympathise considerably with the difficulty in expecting ordinary people, who are not familiar with this area of law to know the detailed rules and regulations referred to at the beginning of our decision.[14]If only he had known, the Appellant says, he would have asked earlier and the very fact that he, through his sister responded so quickly, after receiving the notes, tends to corroborate his statement that that is why there was a delay. But we have to look ourselves into the mind of the Chairman at the time and examine his reasons and ask ourselves if he committed an error of law in exercising his discretion to not extend the time, so as to provide extended reasons out of time. We have looked at the decision of 19 March. That refers to the delay in appealing and it refers to the reasons for the delay in appealing being the lack of information from the Tribunal offices. But it does not on the face of the letter explain the delay in applying for the extended reasons and it does not on the face of the letter explain that the reason why the extended reasons application was delayed was because the appeal was delayed. What in effect is being said, is that on reading that letter the Chairman should have put 'two and two together' and should have realised that the reason why there was a delay in the application for extended reasons was that the Appellant had only just learned that he needed them in order to pursue his appeal. That was not spelled out on the letter but we, with all the information we have received, can see that it was clearly implicit in the letter.[15]We have to observe that it is a great shame that the learned Chairman does not appear to have realised, or may not have realised on reading the letter, that the explanation for the delay in applying for the extended reasons was the delay in the Appellant's knowing the procedure for appeal. He has not said that, but we can anticipate that it may well have been the position that he did not appreciate it. That is a great shame. However we have to apply the law as it stands. We have to ask ourselves whether, on the information before him, the learned Chairman reached a decision which no reasonable Chairman applying legal principles could have reached. Looking at the evidence and material before him, the fact that he did not draw the inference cannot, it seems to us, be categorised as an error of law. That he did not do so is both understandable and unfortunate, for we have no doubt that had the Chairman realised the reason why there was a late application for an extended reasons, his answer may well have been different.[16]Accordingly, restricting ourselves as we are bound to do to our very limited function as an Employment Appeal Tribunal, we feel driven to the conclusion that there was no error of law on the face of the decision of the Employment Tribunal Chairman when he refused to give extended reasons. We say, "driven to," not because there is any criticism of the way in which the learned Chairman approached the matter, but because the consequences of it are that the Appellant is effectively shut out of his appeal because of the way in which the regulations are drawn. However, that is the law as it stands and we have applied it. Accordingly, as there is no point of law arising on the appeal, we dismiss it at this preliminary stage.