MR A N MEYER v ADWEST STEERING LTD [2000] UKEAT 808_98_0107

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 808_98_0107

Case No Appeal No. EAT/808/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A N MEYERAPPELLANT

ADWEST STEERING LTDRESPONDENT

Before

Mr Justice Lindsay

Date 1 July 2000

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondents MR D BROWN (of Counsel) Instructed By: Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ MR JUSTICE LINDSAY (PRESIDENT) : We have before us the full hearing of some applications by Adwest Steering Ltd for Mr Meyer to be struck out or, at any rate, that his appeal be brought to a grinding halt by whatever technical route is appropriate.

[2]Mr Damien Brown has appeared for Adwest Steering. Mr Meyer is not before us and has written to indicate, more than once, that he is unable to attend. We have some sympathy for his inability to attend because it seems that he has managed to get alternative employment which might be jeopardised if he does attend but, for all that, he does not attend.

[3]It is a tangled tale we have to tell. It begins on 27 October 1997 when Mr Meyer presented an IT1 complaining of unfair dismissal as at 1 October 1997 and in that IT1 he gave his address as 12 Wyre Court, Tilehurst, Reading, RG31 6FU.

[4]On 12 February 1998 there was a hearing at the Tribunal at Reading under the chairmanship of Mr J.G. Hollow and on 20 February 1998 the Decision with Summary Reasons was sent to the parties and the claim for unfair dismissal failed. That decision confirmed a decision announced orally on the day of the hearing, 12 February 1998. The Summary Reasons were very summary, they were some 19 lines long. There is no reason to think that the Decision was not sent to the addresses which the parties had respectively given. Unfortunately, though, by then Mr Meyer was no longer at 12 Wyre Court. He had not taken the trouble to inform the Tribunal of his change of address. He did not receive the Summary Reasons, at any rate this is his case, for a time. He contacted the EAT with a view to an appeal. He was told that for an appeal Extended Reasons would be necessary and that he would have to apply out of time to the Employment Tribunal for Extended Reasons. However, he was refused Extended Reasons. He appealed to the EAT against that refusal. There was a preliminary hearing of that appeal before Morison J, President, on 30 November 1998. The matter was directed to go to a full hearing at the EAT and in the course of that preliminary hearing judgment Morison J said:

"We have a decision in summary form which is not susceptible to a review by this Court, because of the way in which it has been expressed. No sensible appeal can be conducted on the basis of the summary reasons as they have been provided to us as Ms Demetriou has very properly accepted."

[5]There was then a full hearing at the EAT on 18 October 1999 before exactly the same panel of three as are sitting today and we shall treat our judgment then given as if incorporated into this one: en route to our conclusion in that matter we said:

"However, as Mr Damien Brown helpfully points out on behalf of the Respondent, [Mr Damien Brown appeared for Adwest on that occasion as on this] the summary reasons here were very summary; it is not a question of their being two or three lines, but matters are not at all fully explained and we do fear that if the matter went forward on the basis of the summary reasons standing as sufficient, even if accompanied by Chairman's notes, they would probably be found insufficient as a fair basis of an appeal."

[6]We found that whilst Mr Meyer had asked for Extended Reasons he had done so out of time - see Employment Tribunal Rule 10 (4) (c) - but he had not asked for that time to be extended under Employment Tribunal Rule 15 and we adjourned the appeal in order that he might do so. We said:

"This is an odd area in that, unlike the position in civil litigation under the old rules of the Supreme Court where, under Order 59 Rule 14(2)(a), an application for leave to appeal out of time was automatically treated as including an application for an extension of time, there is no corresponding rule in the EAT or IT rules. The rules in this area are undoubtedly unsatisfactory and the ET rules do not usefully dovetail with the EAT rules. We hold that this is a case in which the better course would be to give an adjournment to Mr Meyer in order that, under Rule 15, he can ask that he be granted an extension of time in which to ask for Extended Reasons. Whether he can make out a case for that on the merits may be doubted. Mr Brown points out a number of defects that the Respondents will, no doubt, wish to draw to the Tribunal's attention but that is not a matter for us. We are simply asking ourselves whether an adjournment for such a purpose would be an appropriate way of dealing with the matter. We see that it is."

We added:

"Accordingly, what we do is simply adjourn this full hearing in order that within a short interval Mr Meyer can make application under Rule 15 for an extension of time in which to ask for Extended Reasons. If he has not lodged it with the Employment Tribunal within 14 days after receiving a transcript of this judgment, then the matter can be restored by the Respondent to the EAT, and, if that has become the case, the Respondent will be in a strong position to ask for the matter simply to be struck out."

We continued:

"Mr Brown is concerned that the application under Rule 15 to the Employment Tribunal should not only be restricted as to the time within which it is to be made but that the reasons which Mr Meyer is going to rely on shall not be left shapeless. It is difficult for us to prescribe exactly what Mr Meyer can and cannot say on an application which will not be in front of us, but it must be right that he shall concentrate on the reasons why he failed to give notice of his change of address and what the practical consequences of that failure were. It is not for us to make out his case for him. He will obviously not have an easy task but it is not for us to anticipate further than that."

[7]Mr Meyer did apply to the Employment Tribunal within the time which we had prescribed. The Chairman had seen the transcript of our judgment of 18 October but even so he begins his observations in a document headed "Note". With a misunderstanding, he wrote:

"I have been asked by the applicant Mr A N Meyer to exercise my discretion under Rule 15 of the Employment Tribunals Rules of Procedure 1993 to provide him with extended reasons for the decision made on 12 February 1998 that he had been fairly dismissed by his employers. Having considered the matter, I decline to exercise my discretion in his favour and decline to provide extended reasons. The purpose of this note is to explain why I have taken this course."

That misunderstanding may have been engendered by Mr Meyer's letter to him which said: "Please can I apply for my extended written reasons under Section 15 as instructed to do so by the EAT on 18 October 1999." [which was not, of course, the case].

[8]But there are passages in the Chairman's, Mr Hollow's, note that indicate that the Chairman had in mind an application being made for an extension of time under Rule 15. For example, he says:

"Having reconsidered the matter, I remain of the view originally expressed. I do not extend the applicant's time for requesting extended reasons and do not provide them."

Rather unattractively, he says: "It seems to me that if I were prepared to extend the time for making that request until 25 October 1998, I should then be obliged to provide the extended reasons." which leaves one with the rather distasteful possibility (which I would hope was not in his mind) that the extension of time was refused in order to escape the obligation of giving Extended Reasons.

[9]It is not clear when the Chairman's Note was sent to Mr Meyer or to the Respondent but we shall assume that it was sent on or about the date it bears, which is 17 November 1999. We shall also assume that it was open to the Chairman alone to refuse an extension of time: see Rule 13 (8) on the basis that there was no implication of the kind described in Rule 13 (8) (b). Thus, assuming also that the Chairman's Note can be regarded as a decision, properly-so-called, Mr Meyer had until 28 December 1999 to appeal against that refusal. He did not do so. On 25 February 2000 the Tribunal wrote to him, saying:

"Please write to indicate whether you wish to withdraw your appeal or appeal against the Chairman's refusal to provide extended reasons."

[10]On 3 March 2000 Mr Meyer indicated that he did wish to appeal against the refusal to provide Extended Reasons, also against the refusal to extend time under Rule 15. Adwest's response was on 21 March 2000 and they asked that two things should occur. First of all, that there should be struck out Mr Meyer's appeal of 3 March and secondly, that there should be struck out Mr Meyer's appeal which we had adjourned in our decision of 18 October 1999. After some thoroughly understandable doubt on Adwest's part as to quite what was going to be before the Court today, the EAT wrote on 20 April 2000 "The Notice given by the EAT dated 18 April 2000 is headed 'Application to Strike Out'. It is those 2 applications which will be heard on 7 July 2000 [that is a reference to Adwest's letter of 21 March which asks for the striking out of two matters]. Any applications by the Appellant, such as to extend time for any appeal, and any cross-applications by the Respondent are to be heard at the same time." And a copy of that was sent also to Mr Meyer.

[11]On 16 June 2000 the Employment Appeal Tribunal, having heard from Mr Meyer that he would not be attending today, wrote to him to say:

"Please write as a matter of urgency to clarify the points you raise in your letter, what applications are you seeking to make? Regarding the forthcoming hearing please refer to my letter dated 20 April 2000 concerning the applications to be considered. Also please note paragraph 8 of the Practice Direction concerning preparation of skeleton arguments for this hearing."

[12]On 23 June Mr Meyer wrote in answer, again saying that he would not attend today and, he said:

"Thank you for your letter, please can you be aware that I will not be attending the hearing as stated in my previous letter, because I am working for an agency now, on a day to day basis, so I could lose my job, if I did attend. But I also believe that nothing has changed since last time, because the Chairman of the Reading Tribunal has still refused to give me Extended Written Reasons, so really it is back to where it was before."

He indicated no application of his which he wished to have heard today. So all we have in front of us are the two so-called strike-out applications.

[13]The case is undoubtedly an unfortunate one. Much of the time spent (and, no doubt, costs incurred) could so easily have been avoided if the Chairman had only joined his lay members in giving Extended Reasons, rather than devoting himself to the task of composing the long typed note of 16 November 1999, some three and a half pages of close typing, and hence to his composing a document very greatly longer than the Summary Reasons which Mr Meyer had been given in the first place.

[14]The absence of Extended Reasons here means, as Morison J said, that there can be no real appeal against the substantive decision of 20 February 1998. Had Mr Meyer made application to us under Employment Appeal Tribunal Practice Direction 2(2) we could, perhaps, have elected to hear his appeal on the Summary Reasons only, which would very probably, perhaps inescapably, have led to a remission to a fresh Employment Tribunal to hear the whole case afresh, a consequence which would, of course, have taken up far more of the Employment Tribunal's valuable time than the task of drawing up Extended Reasons. Somewhat fortuitously, the Employment Tribunal has, by reason of Mr Meyer's not turning up and not so applying, avoided what otherwise would have been the consequences of Mr Hollow's marked disinclination to give Extended Reasons.

[15]So far as concerns the two strike out applications, firstly there is no power to strike out a Notice of Appeal which has not been properly instituted. Mr Meyer's appeal of 3 March was out of time. There has been no application to extend time for its acceptance. It has not been registered and therefore it cannot be struck out. The application to strike it out is, strictly speaking, misconceived but we, I think, are in a position to assure Adwest that there is no appeal of 3 March that can go further. Secondly, as for the striking out of the appeal which we adjourned on 18 October, in other words the appeal begun by a letter of Mr Meyer of 2 June 1998, there are a number of points to make.

[16]First of all, we do not have the Extended Reasons required by EAT Rule 3 (1) (a). Extended Reasons have been refused. There is no instituted appeal against the decision to refuse Extended Reasons and not to extend time for applying for the same. There is no current application to extend time for the reinstatement of an appeal against the decision refusing Extended Reasons and declining to extend time. There is no current application that we dispense with Extended Reasons or proceed instead upon Summary Reasons. There has been no explanation by Mr Meyer of his delay in appealing against the refusal to give Extended Reasons as signified by the Note of 18 November 1997. The Abdelghafar test has not been satisfied: see also Aziz v Bethnal Green . So far as the merits of the underlying decision and the appeal against it are concerned, that is to say in respect of unfair dismissal, they might have needed to be considered because the merits of the substantive case do have some part to play in consideration of whether time should be extended: see again Abdelghafar supra . But, although it is difficult to come to any really informed view on the basis of the very short Summary Reasons which we have referred to, their tersity does not demonstrate any obvious error of law.

[17]For all our unease at Mr Hollow's Note which, at some length, in effect, serves to deny Mr Meyer any prospect of an appeal on the merits, we cannot say that it has within it any error of law, once the misunderstanding with which it began is put aside.

[18]In all these circumstances, although we have found this a troublesome case, we cannot see how Mr Meyer's Notice of Appeal of 21 April 1998, the one adjourned by us on 18 October 1998, can ever become an appeal capable of an informed hearing. Mr Meyer may feel aggrieved and we would greatly have preferred that the time and costs so far spent in the matter since the Employment Tribunal's original decision on 20 February 1998 could have been directed to a hearing on the merits. But Mr Meyer is, to no small extent, the author of his own difficulties and so, with some reluctance, we strike out his appeals of 21 April 1998 and 2 June 1998.