MISS M J SWINBOURNE v BIRMINGHAM CITY COUNCIL [2000] UKEAT 681_00_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 681_00_2510Case No Appeal No. EAT/681/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS M J SWINBOURNEAPPELLANTBIRMINGHAM CITY COUNCILRESPONDENT
Before
Mr Justice Charles Mr B V FitzgeraldDate 25 October 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE CHARLES : This appeal comes before us today by way of preliminary hearing pursuant to our Practice Direction. Our task is therefore to consider whether the appeal raises any reasonably arguable points of law.[2]The parties are Miss Swinbourne who is the Appellant and was the Applicant before the Employment Tribunal and Birmingham City Council.[3]The Appellant has written to this Tribunal inviting us to deal with this preliminary hearing on the papers and that is what we are now doing.[4]There are two Notices of Appeal. The first in time is dated 20 March 2000 and relates to a decision of an Employment Tribunal sitting at Birmingham on 25 November 1999. Only Summary Reasons have been given for that decision, though Summary Reasons were sent to the parties on 22 December 1999.[5]Rule 10(4)(d) in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 provides that:
"(4) The reasons for a decision of the tribunal shall be given in summary form except where - (d) the tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision."
[6]On 7 April 2000 this Tribunal wrote to the Appellant in the following terms:
"I refer to your Notice of Appeal dated the 20 th March 2000 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."
[7]On 12 April 2000 the Appellant sought Extended Reasons from the Employment Tribunal. As appears later in this judgment it may be that this was not her first request for Extended Reasons.[8]On 11 May 2000 the Regional Secretary wrote to the Appellant in the following terms:
"Thank you for your letter received at this office on 12 th April 2000 the contents of which are noted. I am directed by a Chairman (Mr S Ahmed) to say that under Rule 12(4)(c) a request for extended reasons must be made within 21 days of the summary reasons being sent. The decision with summary reasons was sent to the parties on 22 nd December 1999 and the applicant is therefore considerably out of time for making her request. The Chairman has considered the request and does not consider it appropriate to issue extended reasons out of time unless ordered by the EAT to do so. I am copying our exchange of correspondence as indicated below."
That letter contains a typing error in that it refers to Rule 12(4)(c) as opposed to Rule 10(4)(c).[9]This letter gives no reasons for the decision not to provide Extended Reasons, save that the request is out of time and thus it gives no reasons why the Chairman did not extend time, including any relating to the ability of the Employment Tribunal in practical terms to provide Extended Reasons in May 2000. The power to extend time is included within Rule 15.[10]This lack of any reasons is particularly troubling, having regard to a letter written by the Appellant dated 24 May 2000 which constitutes her Notice of Appeal against the refusal to provide Extended Reasons, which is the second appeal before us.[11]Paragraphs (5), (6) and (7) of that letter are at page 10 of the bundle before us and are in the following terms:
"(5) After the hearing I was informed by a barrister in January 2000 that I could appeal. I requested the documents from Anthony Collins which I received on the 11 th February. (6) I wrote to the Equal Opportunities Commission who informed me that I would need extended reasons (18 Feb). I wrote to the Industrial Tribunal requesting the extended reasons. After receiving no response I telephoned the Industrial Tribunal and was informed they hadn't received the documents. On the 28 th March I received a letter from the Industrial Tribunal which informed me that they had received the documents on the 1 st March. The Industrial Tribunal referred me to the EAT Re: An appeal. (7) From March till I received Mr Ahmed's decision in May I spoke to the Industrial Tribunal. I was informed of the following: That the Chairman was preparing the Extended Reasons. Copies would be sent to all parties. That the correspondence had to be put with my file which was downstairs."
[12]Paragraph 6 indicates that the first request for Extended Reasons was a little out of time but paragraph 7 indicates that Extended Reasons were being prepared and thus that, although no doubt their preparation would involve time and trouble, there was then no practical reason why they should not be prepared.[13]In our judgment the appeal against the refusal to provide Extended Reasons raises reasonably arguable points in that the lack of any reasons itself shows a failure to satisfy the Meek test and/or indicate that the discretion has not been exercised properly. A decision that a Chairman will not do something unless this Tribunal orders him to do so, does not seem to us to be one that on its face is properly reasoned.[14]Further this Tribunal has a discretion to allow an appeal to proceed solely on Summary Reasons; that discretion flows from Rule 39(2) of our Rules and its existence can be seen, for example, in Harvey T 1442- 02. It follows that when this Tribunal comes to consider the appeal against the refusal to provide Extended Reasons it should also, in our judgment, consider whether or not it would be appropriate for the substantive appeal in this case to proceed on the basis of the Summary Reasons already given which, as I have indicated, it may be Rule 10(4)(d) applies to. I have already set out that Rule.[15]We will therefore direct that that issue, namely whether it would be appropriate for this Tribunal to proceed with the substantive appeal on the basis of the Summary Reasons comes on at the same time as the appeal against the refusal to provide Extended Reasons.[16]Given the letter from the Appellant dated 24 May, it also seems to us appropriate at this stage in an attempt to see that this Tribunal, when it hears the appeal and the other matter I have just referred to, has as much information as possible for us to direct that an Officer of this Tribunal do write to the Employment Tribunal enclosing a copy of the letter from the Appellant dated 24 May 2000 and asking them to comment thereon and, in particular, on sub-paragraphs (5), (6) and (7) thereof. That letter should in addition invite the Employment Tribunal to provide us with their records relating to all and any applications that Extended Reasons be given.[17]Further, albeit perhaps unusually, that letter should also invite the Chairman to indicate the reasons why he decided not to provide Extended Reasons and, in particular, whether there is any practical impediment such as the lack of documentation which would render the provision of Extended Reasons impracticable.[18]We will further direct that by that letter the Officer of this Tribunal should invite the Employment Tribunal to preserve all its records concerning this matter until it has been finally dealt with by this Tribunal.[19]We will give the appeal and the other application Category B and set it down for a day.