MR AND MRS KELLAWAY T/A TRAMPS HAIR DESIGN v MISS N FLETCHER [2000] UKEAT 1485_99_0111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1485_99_0111Case No Appeal No. PA/1485/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR AND MRS KELLAWAY T/A TRAMPS HAIR DESIGNAPPELLANTMISS N FLETCHERRESPONDENT
Before
Mr Justice CharlesDate 1 November 2000
[1]APPEARANCES For the Appellants NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE CHARLES : This is an appeal from an order of the Registrar dated 20 July 2000. That Order was in the following terms:
"UPON a Notice of Appeal dated the 2 nd day of December 1999 having been lodged against an Employment Tribunal decision promulgated on the 23 rd day of November 1999 in summary reason form only AND UPON the Appellant having been informed by letter dated the 14 th day of December 1999 that there is no jurisdiction to hear an appeal solely in respect of summary reasons AND UPON the failure of the Appellant to provide extended reasons in respect of the aforesaid decision in accordance with Rule (3)(c) of the Employment Appeal Tribunal Rules 1993 or written confirmation that extended reasons have been requested in accordance with the EAT Order of the 27 th day of June 2000 IT IS ORDERED that the aforesaid lodged Notice of Appeal be struck out."
[2]Neither party to the appeal has attended before me today. The Appellants are a Mr and Mrs Kellaway, who trade as Tramps Hair Design, have written saying that due to unforeseen family problems they are unable to attend. That letter is dated 31 October 2000.[3]The Respondent to the appeal, Miss Fletcher, has written on 11 October saying that she did not intend to be present. What she says is that so far as she is concerned this matter has gone on long enough and, as she puts it, she is fed up with having to go to all the effort of continuing with the proceedings and obtaining, as I understand it, enforcement of the Order made by the Employment Tribunal.[4]The background to the Order made by the Registrar can be summarised as follows. On 23 November 1999, as that Order indicates, Summary Reasons for a decision made by an Employment Tribunal sitting at Southampton on 18 November 1999 were sent to the parties. The decision of the Employment Tribunal was that the Respondents had made unlawful deductions from the Applicant's wages and the Employment Tribunal ordered that they were to pay to her forthwith wages in the sum of £252.00, less the appropriate statutory deductions for Income Tax and National Insurance contributions. As appears from that Order the amounts at stake in these proceedings are not large. Again, as appears from the Registrar's Order, the Respondents before the Employment Tribunal (and the Appellants today) appealed against that decision by a Notice of Appeal dated 2 December 1999. On 14 December 1999 this Tribunal wrote to the Appellants in the following terms:
"I refer to your Notice of Appeal dated 2.12.99, which you seek to lodge with this Tribunal. The Employment Tribunal decision you submitted in support of your appeal is only in summary form, and I should explain that in order for the appeal to proceed here you must file a copy of the extended written reasons of the Employment Tribunal in accordance with the requirements of Rule 3(1) of the Employment Tribunal Rules 1993. I would draw your attention to the matter of William Hill Organisation v A Gavas (EAT/645/88) in which the EAT stated that without extended written reasons an appeal cannot properly continue and upon appeal to the Court of Appeal the view of EAT was upheld. The time for applying for the extended written reasons is set out in the explanatory [notes] sent with the Employment Tribunal decision. In the event of your request for the extended written reasons being refused, you may make an appeal to the EAT against that refusal. The appeal must be made within 42 days of the date of the refusal letter and be supported by a copy of the refusal letter. The matter will then be set down for a preliminary hearing. You should enclose a copy of this letter when making your application to the Employment Tribunal."
[5]As appears from that letter the attention of the Appellants was drawn to the fact that they have brought their appeal by reference to Summary Reasons and that Rule 3(1) of this Tribunal's Rules requires that an appeal should be brought by reference to Extended Reasons.[6]At this stage I pause to comment that, the implication from that letter and from the paragraph in the Order, that this Tribunal has no jurisdiction to hear an appeal solely in respect of Summary Reasons is not correct. As appears from Harvey at paragraph T 1442-02, this Tribunal does have a discretion to hear an appeal by reference to Summary Reasons. As also appears from that paragraph, an appeal by reference to Summary Reasons can only proceed if this Tribunal exercises that discretion. That discretion is a judicial discretion and it therefore falls to be exercised, having regard to the competing factors relating to the prejudice that might respectively be caused to the parties and also the reasons for any delay coupled with the length of any delay.[7]The letter of 14 December 1999 was followed by further correspondence in March 2000. The first of those letters was a reminder by this Tribunal to the Appellants saying that no response had been received to the letter of 14 December 1999. That was followed by a letter from the Appellants saying they had not received the letter of 14 December 1999 and a copy of that letter was sent to the Appellants on 17 March 2000. That letter was in the following terms:
"I refer to the above matter and your letter of the 14 th day of March 2000. Please find enclosed a copy of the letter sent to yourselves on the 14 th December. Please let me know by the 24 th March if Extended Reasons have been applied for and the result of that application."
As can be seen from that letter this Tribunal invited the Appellants to let it know by 24 March if Extended Reasons had been applied for and the result of that application.[8]I pause to comment that that letter accurately reflects the fact that this Tribunal has a discretion to allow an appeal to proceed by reference to Summary Reasons and a factor in the exercise of that discretion is whether or not Extended Reasons are provided by an Employment Tribunal out of time. There is a discretion for an Employment Tribunal to so provide Extended Reasons and, as was pointed out in the letter of 14 December 1999, a refusal to exercise that discretion can be appealed against.[9]There was no reply to the letter dated 17 March and that was followed by an Order dated 27 June which provided as follows:
"UPON a Notice of Appeal dated the 2 nd day of December 1999 having been filed in respect of Summary Reasons for the Decision of the Employment Tribunal AND UPON the Appellants having been informed by letter dated the 14 th day of December 1999 that there is no jurisdiction to hear an appeal solely in respect of Summary Reasons IT IS ORDERED that unless written confirmation is received within 7 days from today that an application has been made to the Employment Tribunal for the Extended Reasons for the Decision the Notice of Appeal will be struck out."
[10]As is apparent the second paragraph of that Order also contains an assertion as to lack of jurisdiction which I have pointed out is not correct. But the final paragraph recognises the correct position and the need to apply for Extended Reasons, it follows in my judgment that from the correspondence and the Order of the 27 th day of June 2000, it has been made abundantly clear to the Appellants that if they wish to proceed with their appeal they should apply to the Employment Tribunal for Extended Reasons. It is only when they have done this that this Court can properly consider whether or not it should exercise its discretion to allow any appeal to proceed by reference to Summary Reasons.[11]In the letter received today and written on 31 October 2000, the Appellants refer to their inability to attend today by reason of unforeseen family problems. In the remainder of their letter they focus their points on the appeal by reference to the Summary Reasons and ignore the point made to them that they need to apply for Extended Reasons and the reason why this appeal was struck out was that they had failed to do so.[12]It is also clear from that letter from the Appellants that they have discussed the matter with Solicitors because they refer to legal advice given by Solicitors in respect of advancing the grounds of their appeal by reference to the Summary Reasons.[13]In my judgment, in the absence of(i) any recognition by the Appellants of the absence of Extended Reasons and(ii) any steps having been taken by them to apply for Extended Reasons and notwithstanding the point I have made that this Tribunal does have jurisdiction to allow an appeal to proceed by reference to Summary Reasons, in my judgment the Registrar in making the Order on 20 July following on the Order of 27 June (which was an "unless" Order relating to an application to the Employment Tribunal for Extended Reasons) has not erred in law in striking out this Notice of Appeal.[14]It follows that, in my judgment, this appeal should be and is dismissed.