BARNFIELD COLLEGE v MRS W ARNOLD [2000] UKEAT 662_00_2107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 662_00_2107Case No Appeal No. EAT/662/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BARNFIELD COLLEGEAPPELLANTMRS W ARNOLDRESPONDENT
Before
His Honour Judge Peter Clark Mr J W Hougham Mr W MorrisDate 21 July 2000
[1]APPEARANCES For the Appellant MISS L CHUDLEIGH (of Counsel) Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL JUDGE PETER CLARK : This case highlights, yet again, the mismatch between the Employment Tribunal Rules of Procedure 1993 and the EAT Rules 1993. The appeal which is now before us for ex parte preliminary hearing is an appeal by the respondent before the Bedford Employment Tribunal, Barnfield College, against the refusal of a Chairman, Mr J Rosser, contained in a letter to the respondent's solicitors, Messrs Eversheds, dated 4th April 2000, to provide extended reasons for what is described on the face of the record as a "DECISION" promulgated with summary reasons on 22nd February 2000. Background The applicant, Mrs Wendy Arnold, was employed by the respondent College as a lecturer from September 1991 until the termination of that employment in August 1999.[2]On 31st August 1999 she presented a complaint to the Employment Tribunal alleging "Constructive Dismissal. Unfair dismissal". She named as her representative her husband, Mr Thomas Arnold, who we understand has no legal training. The basis of the claim appeared, from the particulars of complaint, to lie in the respondent's decision to appoint another internal candidate to a post for which the applicant applied who, it is alleged, was less well qualified for that post in many respects. That was said to be a fundamental breach of the implied term of mutual trust and confidence entitling the applicant to resign and claim constructive unfair dismissal.[3]The claim was resisted. By their Notice of Appearance the respondent, then not professionally represented, denied that the applicant was dismissed, whether constructively or at all. In their response, the respondent said, at paragraph 5 of their grounds of resistance:
"At points in her correspondence with the College, Mrs Arnold has suggested that the Selection Panel may have been motivated by racial considerations since the candidate who was appointed is of Asian origin. The respondent contends that this was not the case and Mrs Arnold has no grounds for making this accusation."
The question of race was not mentioned in the applicant's Originating Application. We assume that she is of different racial origin to the successful candidate.[4]The case came on for hearing before a full Employment Tribunal chaired by Mr Rosser sitting at Bedford on 8th February 2000. The applicant was represented by her husband; the respondent by Mr Scribbins, Clerk to the Governing Body of the College.[5]The case was not concluded on that day. Instead the tribunal made the following orders:(1) the applicant was given leave out of time to amend the application to include a claim of race discrimination.(2) The hearing was adjourned. The restored hearing was to be an entirely new hearing of the evidence before a differently constituted tribunal.(3) A further directions hearing before Mr Rosser was appointed for 7th March 2000.[6]In their summary reasons for making those orders the tribunal explained that it appeared to them that in correspondence with the respondent the applicant had raised a question as to whether positive discrimination had taken place in favour of the Asian candidate who was appointed to the post applied for by the applicant.[7]It seems that that point was raised by the tribunal of their own motion with Mr Arnold as a result of which an application was made to amend the Originating Application out of time to add a complaint of racial discrimination.[8]That application was opposed by Mr Scribbins on behalf of the respondent, but the tribunal gave permission to the applicant to amend her Originating Application.[9]Dissatisfied with that outcome Mr Scribbins faxed a letter to the tribunal on 14th February 2000 (before promulgation of the Decision with summary reasons), asking for "a copy of the written decision, with reasons, if that is possible." The decision with summary reasons then followed.[10]The respondent then instructed solicitors, Messrs Eversheds, who wrote to the tribunal on 30th March 2000. They indicated that the respondent intended appealing the tribunal's decision to give the applicant leave to amend her Originating Application out of time. They asked for extended reasons for the decision promulgated with summary reasons, pointing out that time for lodging a Notice of Appeal with the EAT expired on 4th April 2000, that is, 42 days from the date of the "Decision" promulgated with summary reasons on 22nd February 2000.[11]By a laconic letter dated 4th April 2000 the Bedford tribunal replied:
"Thank you for your letter of the 30th March. A Chairman of Tribunals [Mr Rosser] has reviewed your letter, which asks for extended reasons and decided to reject the request."
[12]On 6th April 2000 Eversheds lodged a Notice of Appeal ['the first appeal'] against the tribunal's order giving the applicant leave out of time to amend her Originating Application with the EAT, attaching a copy of the tribunal's decision with summary reasons dated 22nd February.[13]On 10th April Eversheds wrote to the tribunal asking again for extended reasons and apologising for the fact that a request with extended reasons was not submitted within 21 days of the decision being sent to the parties. No response to that letter was received from the tribunal until a follow-up letter was sent by Eversheds on 10th May.[14]Meanwhile, on 13th April the Deputy Registrar sent the standard form EAT letter to Eversheds, pointing out that under Rule 3(1) of the EAT Rules a copy of the tribunal's extended reasons for their decision must be served with the Notice of Appeal. That letter continues:
"In the event of your request for the extended written reasons being refused, you may make an appeal to the EAT against that refusal."
[15]That was followed by an order of the Registrar dated 5th May 2000, referring to the Deputy Registrar's letter of 13th April, and ordering that unless confirmation in writing is received within seven 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 referred to the Registrar for determination.[16]Following that order Eversheds wrote to the Employment Tribunal again on 10th May. They referred to their unanswered letter of 10th April, asking for the Chairman's decision of 4th April to be reconsidered and enclosing a copy of the EAT letter, (presumably that of 13th April). They asked again for extended reasons so as to obviate the need for an appeal against the refusal to provide extended reasons.[17]On 11th May the member of the tribunal staff dealing with the matter, Stephen Cox, replied. He had referred the file to the Regional Chairman, Mrs Catherine Tribe, who directed him to reply that Mr Rosser's reasons for refusing to provide extended reasons was that the application was made out of time.[18]Following receipt of that letter Eversheds lodged a second appeal on behalf of the respondent by a Notice dated 16th May 2000, challenging the tribunal's refusal to provide written extended reasons. That is the appeal presently before us. The Rules of Procedure[19]Employment Tribunal Rules Rule 10 of the Rules contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 ['the Regulations'] is headed "Decision of tribunal". Rule 10(4) provides, so far as is material:
"(4) The reasons for the decision of the tribunal shall be given in summary from except where- (a) the proceedings involve the determination of an issue arising under or relating to the 1976 Act [ that is the Race Relations Act 1976 ]; (b) a request that the reasons be given in extended form is made orally at the hearing by a party; (c) such a request is made in writing by a party after the hearing either- (i) before any document recording the reasons in summary form is sent to the parties; or (ii) within 21 days of the date on which that document was sent to the parties." "
Decision" is defined in Regulation 2 of the Regulations: ""Decision" in relation to a tribunal includes- a declaration, an order, including an order striking out any originating application or notice of appearance made under rule 4(7) or 13(2), a recommendation or an award of the tribunal, and a determination under rule 6, but does not include any other interlocutory order any other decision on an interlocutory matter;"[20]EAT Rules S.21(1) of the Employment Tribunals Act 1996 provides that:
"An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising any proceedings before, an employment tribunal under or by virtue of- (c) the Race Relations Act 1976, (f) the Employment Rights Act 1996."
Rule 3 of the EAT Rules provides:
"(1) Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal the following documents:- (a) a notice of appeal … (b) a copy of the decision or order of the employment tribunal … with is the subject of the appeal; (c) in the case of an appeal from an employment tribunal, a copy of the extended written reasons for the decision or order of that tribunal." (2) The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision or order of the employment tribunal were sent to the appellant."
We have substituted the expression 'employment tribunal' for 'industrial tribunal' where it appears in the Rules. By Rule 39:
"(1) Failure to comply with any requirements of these Rules shall not invalidate any proceedings unless the Appeal Tribunal otherwise directs. (2) The Tribunal may, if it considers that to do so would lead to the more expeditious or economical disposal of any proceedings or would otherwise be desirable in the interests of justice, dispense with the taking of any step required or authorised by these Rules, or may direct that any such steps be taken in some manner other than that prescribed by these Rules. (3) The powers of the Tribunal under paragraph (2) extend to authorising the institution of an appeal notwithstanding that the period prescribed in rule 3(2) may not have commenced."
Comment[21]The following points arise on the Rules:(1) Decision Decision of an Employment Tribunal is a term of art, strictly circumscribed by the definition contained in Regulation 2 of the Regulations. It is to be noted that the definition was widened by the 1993 Rule changes to include strike out orders made under Rule 4(7) and Rule 13(2). Cf. Casella v Banai [1990] ICR 215 . However, it is clear that within the category of interlocutory orders or other decisions on an interlocutory matter which do not fall within the definition of decisions are: (i) an order granting a rehearing. See Peter Simper v Cooke (No.1) [1984] ICR 6 . (ii) an order granting or refusing leave to amend a pleading under Rule 13(1). (iii) the giving of directions under Rule 16. See Nikitas v Solihull Metropolitan Borough Council [1986] ICR 291 . (iv) an order refusing to provide extended reasons for a decision.(2) The Employment Tribunal's duty to give extended reasons The duty to provide extended reasons under Rule 10(4) is limited to tribunal decisions. It does not extend to interlocutory orders which are not within the Regulation 2 definition of decisions.(3) The right of appeal to the EAT The statutory right to appeal on a point of law extends to any decision of, or arising in any proceedings before an Employment Tribunal. ETA s.21(1). A question of law may arise on an interlocutory order made by an Employment Tribunal in proceedings before it, not being a decision within the meaning of Regulation 2.(4) EAT Rules These reflect the distinction between a decision or order of an Employment Tribunal. See Rule 3(1)(b) and (c) and 3(2) of the EAT Rules. Appeals lie against both decisions and orders, thus reflecting the statutory right of appeal contained in s.21(1) ETA. However, and here lies the problem, Rule 3(1)(c) requires the appellant to lodge with his Notice of Appeal a copy of the extended written reasons for the decision or order of the Employment Tribunal.[22]Returning to the Employment Tribunal Rules, a tribunal is required to provide extended written reasons for its decision under Rule 10(4), subject to the time limits there set out (themselves subject to the power to extend time under Rule 15), but not for an order which is not a decision within Regulation 2.[23]What happens in practice is that, implicitly if not expressly, the EAT dispense with the requirement under its Rule 3(1)(c) for extended reasons by exercising its powers under Rule 39.[24]One classic example of this is the practice of permitting an appeal against the Employment Tribunal's refusal to provide extended reasons for its decision to proceed, as in this case, without extended reasons for the order refusing to provide extended reasons for its substantive decision. The present case[25]The procedural position in this case appears to us to be as follows:(1) the "decision" promulgated by the Bedford Employment Tribunal on 22nd February with summary reasons was not in fact a decision within the meaning of Regulation 2. The Employment Tribunal made three interlocutory orders. In a proposed amended Notice of Appeal in the present appeal it is submitted that on that occasion the tribunal was dealing with an application for an extension of time under s.68(6) of the Race Relations Act 1976 . We do not accept that submission. That is a matter that might have been dealt with by way of a preliminary issue under Rule 6, but not on the facts of this case. By granting leave to amend the Originating Application the tribunal has effectively back-dated the race discrimination claim to the date on which the Originating Application was presented and that application was presented within time.(2) The respondent below has a right to appeal against the order granting leave to the applicant to amend her Originating Application out of time to add a complaint of race discrimination, provided that appeal raises a question of law. ETA s.21(1).(3) The letter from the respondent to the Employment Tribunal dated 14th February asked for a copy of the written decision, with reasons. We would not have accepted the further ground of appeal advanced in the proposed amended Notice of Appeal that this was a request for extended written reasons. However, even if it was, in our judgment, the Employment Tribunal was under no obligation under the Employment Tribunal Rules to provide such extended reasons.(4) The application for extended reasons from Eversheds dated 30th March 2000 was made outside the 21 day time limit provided for in Rule 10(4)(c)(ii) taking the start date as the date of promulgation of the decision with summary reasons on 22nd February. However, as we have observed, the decision was not a decision for which extended written reasons had to be given under the Rules.(5) The Employment Tribunal Chairman and Regional Chairman appear to have considered the decision to be one for which extended written reasons should be given, subject to the time limit under Rule 10(4)(c)(ii). In that we think they were mistaken. Further, they do not appear to have considered extending time for giving extended written reasons under Rule 15. However, that is immaterial in the circumstances of this case.(6) The EAT refused to register the first appeal on the basis that it was not lodged with extended written reasons, as required by Rule 3(1)(c). However, the second appeal, against the Chairman's refusal to provide extended written reasons which he was not obliged to provide under the Employment Tribunal Rules, has been registered notwithstanding that no extended written reasons for that refusal have been lodged with the Notice of Appeal. The way forward[26]We shall not deprive these appellants of their right to have points of substance raised in their first appeal properly heard.[27]Accordingly we shall dismiss the second appeal, on the grounds that the Employment Tribunal was under no obligation to provide extended written reasons for the interlocutory order, granting the applicant leave to amend her Originating Application, but we shall direct that the first appeal proceed to a full inter partes hearing on the basis of summary reasons, exercising our powers under EAT Rule 39(2).[28]In the present case the first appeal was lodged more than 42 days after the Employment Tribunal's decision with summary reasons was promulgated. It ought to be out of time. However, since EAT Rule 3(2) provides that time for appealing runs only from the date on which extended reasons for the decision or order was sent to the parties, on the face of it this first appeal is not out of time, time has not yet begun to run and Rule 39(3) specifically provides that the institution of the appeal can be authorised notwithstanding that the period running from the provision of extended written reasons has not commenced.[29]More generally, we urgently invite the relevant rule-making bodies to consider co-ordinating the Employment Tribunal Rules and EAT Rules so that either(a) the Employment Tribunal Rules require tribunals to provide extended written reasons on request for orders as well as decisions of the Employment Tribunal, or(b) the EAT Rules are altered to remove the requirement for appellants to lodge extended written reasons for Employment Tribunal orders, as opposed to decision or possibly(c) to require the Employment Tribunal to provide extended written reasons for decision and summary reasons only for orders, (as is presently the position where a deposit is ordered at a pre-hearing review under Rule 7(6)).[30]If option(a) above is followed, no alteration to Rule 3(2) of the EAT Rules is required; if option(b) is followed, Rule 3(2) will require amendment, we suggest, to read:
"42 days from the date on which the decision with extended reasons or order of the Employment Tribunal were sent to the appellant."
For option (c) the words "with summary reasons" should be inserted after the word "order" in the option (b) formula.[31]In these circumstances this appeal is dismissed and the consequential orders indicated above apply in relation to the first appeal.