MRS ARSHAD HUSSAIN v OFFSHOOT CLOTHING LTD [2000] UKEAT 846_00_1312

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 846_00_1312Case No Appeal No. EAT/846/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS ARSHAD HUSSAINAPPELLANTOFFSHOOT CLOTHING LTDRESPONDENT
Before
His Honour Judge J Altman Mr P DawsonDate 13 December 2000
[1]APPEARANCES For the Appellant MR C HAY (Lay Representative) Instructed by Northern Complaint Aid Fund Checkpoint 45 Westgate Bradford W Yorkshire BD1 2TH JUDGE ALTMAN This is an Appeal from the decision of the Chairman of the Employment Tribunal at Leeds contained in a letter dated 16 May 2000 in which he refused to exercise his discretion to provide extended reasons for a decision out of time. The reason for the application was set out in a letter from the Northern Complainant Aid Fund acting on behalf of the Appellant on 4 May 2000 on the following basis:
"In the past we have submitted appeals in relation to decisions in discrimination cases and, as a consequence, the issue of the distinction between 'extended' and 'summary' reasons did not arise. Prior to receiving the afore-mentioned letter from the Employment Appeal Tribunal, our understanding was that the 'decision sent to the parties' was sufficient for the purposes of an appeal, regardless of whether if was in 'summary' or 'extended' form."
[2]The history of the matter is that on 11 February 2000 the Employment Tribunal heard the application of the Appellant that he was unfairly dismissed and upheld it. Summary Reasons were given at the time and promulgated on 9 March. On 22 March there was a further promulgation of reasons that had been subject to a certificate of correction and without entering into too much examination of whether that or the date of the first promulgation was the start date for a request for extended reasons, it has seemed right for the purposes of this decision to take the 22 March as the start date.[3]0n the 22 April a notice of appeal from that decision was sent off and it is notable that that was 2 weeks before the time limited for appeal to the Employment Appeal Tribunal expired. It was well in time. On 28 April a letter was written by the Employment Appeal Tribunal in fairly standard form saying that in order for an appeal to proceed the Appellant 'must file a copy of the extended written reasons', and referring to the case of William Hill Organisation v A Gravas [1990] IRLR 488. That is authority for the proposition that without extended written reasons an appeal cannot properly continue.[4]Accordingly and presumably on receipt of that letter the Appellant's representative wrote on 4 May to request extended written reasons. Because of the juxtaposition of time limits that are fortuitously provided in the rules and notwithstanding that his appeal was well in time, the request for extended written reasons was 22 days out of time. The response by the Chairman was to set out his reasons for rejecting the request, basically on the ground that he did not consider that the reasons put forward by the Appellant justified extending the time notwithstanding the fact that the consequence may be to deprive a person of their right on an appeal which had been entered in time.[5]We have come to the conclusion that the first port of call must be the rules of the Tribunal. Rule 10(4) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations provides:
"The reasons for the decision of the Tribunal should be given in summary form except where c … A request is made in writing by a party after the hearing … ii. within 21 days of the date on which (the summary reasons) were sent to the parties … and in those circumstances the reasons should be given in extended form. Regulation 15 provides in sub paragraph 1: "
A Chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired"[6]The Chairman has a very broad discretion in that matter and accordingly it seems to us that it cannot be argued that he acted outside the reasonable exercise of that discretion in this case so as to refuse. In other words it cannot be argued that no reasonable Tribunal properly directing itself would have refused to give extended reasons.[7]However, that does not quite end the matter because there is an Appeal pending in any event. We have drawn our attention to the following statutory and regulatory provisions. The Employment Tribunal Act 1996 in section 21 provides:
"An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an [employment tribunal]"
That is a broad right and it is embodied in statute and not regulation.

(b) provides that those rules may be:

"with respect to the manner in which any application to the Appeal Tribunal may be made"
[8]The Employment Appeal Tribunals are made under such a power and rule 3 of those rules provide in sub paragraph 1:
"Every Appeal to the Appeal Tribunal should be instituted by serving on the Tribunal … a copy of the extended written reasons for the decision or order of that Tribunal."
[9]Pausing there we note that, on the face of it, if that is not merely a procedural but a substantive precondition to an Appeal it severely limits the statutory entitlement to appeal which Parliament enacted. The potential inconsistency can be seen from the fact that in the Employment Tribunal Regulations in paragraph 7 of Schedule 1 there is provision for a pre- hearing review where if a Chairman or a Tribunal considers or other Tribunal considers that a claim has no reasonable prospect of success the applicant may be required to make a deposit not exceeding £150. Sub paragraph 6 provides:
"An order made under this rule and the Tribunal's reasons for considering the application in question has no reasonable prospect of success shall be recorded in summary form in a document signed by the Chairman."
[10]There is no provision for extended reasons to be given in that interlocutory situation. Is it to be suggested therefore that there is no right of appeal thereby circumscribing the statutory right of appeal in section 21? We therefore pose the question as to whether the right to appeal in the Tribunal rules is not subject to rule 39(2), which provides:
"The Tribunal may, having considered that to do so would lead to the more expeditious or economical disposal of any proceedings or would otherwise be desirable in the interest of justice, dispense with the taking of any step required or authorised by these rules or may direct that any such steps may be taken in some manner other than that prescribed by these rules."
[11]It seems to us therefore that there is a point to be raised as to whether it is correct to say that as a matter of law in the William Hill case and as a general proposition there is no jurisdiction on the part of the Employment Appeal Tribunal to entertain an appeal unless it is supported by extended reasons, or whether what is actually said by the Master of the Rolls in the William Hill case is in effect that it is a matter for the Employment Appeal Tribunal to decide whether to entertain an appeal even though the rule as to extended reasons has not been complied with, so that once that judgment has been exercised by the Employment Appeal Tribunal the Court of Appeal will not interfere with it. And it seems to us that on the face of it it is at least arguable, which is no more than we have to find at this stage, that that latter interpretation is the correct reading of that judgment.[12]In the circumstances we are proposing subject to any representations from the parties afterwards to make the following directions: The pending substantive appeal will be listed for a hearing of 2 matters; first, the application of the appellant for leave to appeal notwithstanding the absence of extended reasons and for the Employment Appeal Tribunal to exercise its jurisdiction under rule 39 to dispense with the need for extended reasons; secondly and in the event that such an application succeeds to conduct a preliminary hearing in respect of the main appeal. In order to facilitate the arguments that will arise on both those matters we direct that the Chairman be requested to furnish his notes of evidence of the main hearing before the Employment Tribunal.[13]This Appeal will be listed in Category A (P) for half a day. It follows from what is said in those directions that the Respondents will have an opportunity to make representations as to the application for leave to proceed. The extent to which they participate, if at all, in any following preliminary hearing is of course a matter for the Employment Appeal Tribunal on the day and any representations that the Respondents may then make.