MR D J L TURTLE v STEAD & SIMPSON [2000] UKEAT 854_99_2610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 854_99_2610Case No Appeal No. EAT/854/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D J L TURTLEAPPELLANTSTEAD & SIMPSONRESPONDENT
Before
Mr Justice LindsayDate 26 October 2000
[1]APPEARANCES For the Appellant MS E MELVILLE (of Counsel) Instructed by USDAW Oakley, 188 Wilmslow Road Fallowfield Manchester M14 6LJ For the Respondent MS K NICOL Representative Instructed by Employment Law Advantage Ltd Unit 7 Gemini Business Centre 136-140 Old Shoreham Road Hove East Sussex BN3 7BD MR JUSTICE LINDSAY (PRESIDENT) We have before us the Appeal of Mr D J L Turtle in the matter of Turtle v Stead & Simpson. There is an Appeal by Mr Turtle, coupled with an Application made should the Appeal fail. The Appeal is as to the refusal of the Employment Tribunal to give extended reasons. The Application is that if that Appeal does not succeed, then the Employment Appeal Tribunal should proceed at its discretion with the Appeal but on the existing summary reasons. So far as concerns representation before us today, Mr Turtle has appeared by Ms Melville and Stead & Simpson by Ms Nicol. We need to say something of the chronology and background to the matter.[2]On 24 August 1998 Mr Turtle presented an IT1 claiming unfair dismissal, the dismissal being alleged to have occurred on 18 June 1998. On 18 September 1998 Stead & Simpson lodged an IT3 alleging that the dismissal had been for gross misconduct, consisting chiefly of aggressive behaviour by Mr Turtle to staff and managers.[3]On 27 November 1998 and 13 January 1999 there was a hearing at the Employment Tribunal under the chairmanship of Mr I A Edwards. At the conclusion of that hearing a decision was orally given and there was then some oral discussion to which we will have to revert in more detail. On 14 January Mr Edwards, the Chairman, had a letter written to him by Mr Turtle. Mr Turtle had lost. He knew that because the oral decision had gone against him although at this point he had had no form of reasons in writing. Mr Turtle wrote to say inter alia:
"I would also add, that I write not in a fit of anger or disappointment , but in a genuine desire to understand how the panel arrived at this decision."
And a little later in his letter:
"In conclusion sir, I respectfully request, that a written copy of the adjudication be made available to me at your earliest convenience, as I wish to understand fully the thought and deliberations of the panel."
The chairman responded on 18 January saying:
"In due course, you will obtain via your representative, as I promised in the Tribunal, a written decision."
It looks as if Mr Edwards had promised a written decision at the oral hearing on 13 January 1999. On the 18 th January, the very same day, the decision of the Employment Tribunal was sent to the parties. I should say it was the decision not only of Mr Edwards but also of the 2 members, Mr K Hale MBE and Mr A D Hutching and that it was unanimous. It was that Mr Turtle's application for unfair dismissal failed and was dismissed.[4]Summary reasons only were given and indeed, they are summary in the sense that, beyond setting out those who gave evidence and the documents received, the reasoning is of less than half a page.[5]On 28 April 1999 Mr Turtle's Union Legal Officer wrote to the Employment Tribunal saying, inter alia, under the heading "Extended Reasons":
"We have requested extended reasons. The matter was decided on 13 th January 1999 and summary reasons sent to our Basingstoke Office on or about 18 th January but we have not yet had any extended reasons. We should be grateful to receive same as soon as possible so as to consider an Appeal to the EAT."
On 5 May the Employment Tribunal answered that:
"Your letter dated 28 April 1999 has been referred to the Chairman who heard this matter, who has instructed me to reply as follows. The decision with Summary Reasons was promulgated on 18 January 1999 and no request for Extended Reasons appears to have been received at this office. When were Extended Reasons requested?"
[6]On 10 May the legal officer of the Union acting for Mr Turtle said this in his letter to the Tribunal below:- "Mr Turtle was represented at the Hearing by MrAlemoru of this office. Mr Alemoru made an oral application for Extended Reasons at the end of the Hearing on 13 th January 1999 after the Chairman made the decision known. Mr Alemoru said that in terms "Mr Turtle is obviously very disappointed by the decision and we request full written reasons." In addition we understand that the Applicant himself wrote on 14 th January 1999 and in the final paragraph made a request which should also be considered to be a request for full written reasons. In the circumstances we should be grateful if you could let us have Extended Reasons as soon as possible."[7]It is to be noticed that there is no clear allegation there that Mr Alemoru or, indeed, Mr Turtle, had actually used the word 'Extended' at the hearing but that the request had been for, as they said, "full written reasons".[8]On 18 May the Employment Tribunal, having consulted the Chairman, Mr Edwards, said this:
"It is the Chairman's invariable practice to make a note of any request for Extended Reasons made at the hearing. He has carefully examined the notes of evidence, but can see no reference whatsoever to a request for Extended Reasons, and he does not recall any such request being made at the hearing. Before the written decision was promulgated, the applicant personally wrote to the Regional Chairman raising various matters, including matters which he felt the Tribunal should consider, even though at that stage the Tribunal had, of course, already made its decision and announced it at the hearing. He asked that a written copy of the decision be made available to him at the earliest convenience. The Chairman replied and explained that he could obtain a copy of the written decision via his representative, as had already been promised at the Tribunal hearing. The Chairman has again looked at the applicant's letter, but it does not appear to be a request for Extended Reasons. Even if the letter could be interpreted as a request for Extended Reasons, once the Summary Reasons had been promulgated (which they were on 18 January 1999), neither the applicant nor his representative at any stage pointed out that there had been a request for Extended Reasons, nor was there an enquiry as to why the reasons were in summary form. In the circumstances, the Chairman considers – (a) there was no request for Extended Reasons, and (b) even if there had been, either at the hearing orally or by way of the letter from the applicant dated 14 January 1999, there has been such a long delay in pointing out any error to the Tribunal, it is not appropriate for the Chairman to extend the time for granting Extended Reasons. The Chairman therefore refuses the request which you now make."
[9]On 27 May a fully reasoned request by Mr Turtle's advisers was sent to the Chairman asking him to reconsider his refusal to give Extended Reasons; fully to understand it requires one to set out the letter in some detail. The Legal Department of the Union by Mr Alemoru (who had, of course, been in attendance on the last day of the oral hearing) said this:
"I represented Mr Turtle before the Tribunal in his application which was held on 27th November and 13 th January. At the end of the Hearing on 13 th January the Chairman announced the decision of the Tribunal and outlined the reasons. Mr Turtle was very disappointed that his application for unfair dismissal has failed. I immediately asked for extended reasons. I may have used the term "full written reasons"
. I have discussed the matter with the Applicant and he recalls me requesting full reasons at the end of the Hearing. I have also discussed the matter with the Respondents' representative, Mr Hartley, who has some recollection of discussing the matter of an appeal with his clients immediately after the Hearing and believes that was probably prompted by a request on my part for full written reasons. I am absolutely certain that I made an oral application for extended reasons. Further, and in the alternative, the Applicant's own letter of 14 th January 1999 at the penultimate paragraph says:- "I respectfully request that a written copy of the application be made available to me at your earliest convenience as I wish to understand fully the thoughts an deliberations of the appeal." Whilst the Applicant does not use the term "extended reasons" we respectfully suggest that the only reasonable interpretation of his letter is a request for extended reasons. I also refer to the Chairman's letter of 18 th January 1999 in reply to the Applicant. That letter refers to the Chairman having promised in the Tribunal a written decision. I respectfully suggest that that paragraph is a reference to extended reasons. I certainly understood it to mean extended reasons. The Chairman, in his letter, refers to our delay in pointing out any error to the Tribunal. I would like to say, in that respect, that I was wholly unaware of any possible error or misunderstanding until we received a copy of the Chairman's letter of 18 th May 1999. Until then I was acting on the basis that an oral application for extended reasons had been made at the Hearing and that they would follow in due course. Once the Tribunal had highlighted the potential problem we have responded promptly in writing this letter." Then, on a slightly different point, the letter from Mr Alemoru continues:
"Further, we respectfully suggest that the Chairman cannot be right when he says "(b) even if there had been (a Request) either at the Hearing orally or by way of letter from the Applicant … there has been such a long delay … it is not appropriate for the Chairman to extend the time for granting Extended Reasons."
If there had been a request made orally at the Hearing or otherwise then the matter of an extension of time does not arise and an extension is not necessary. Once a request has been made at the Hearing, then the Extended Reasons should follow even though there has been a delay in pointing out the fact that they had not yet been received. In all the circumstances we ask that the Chairman reconsiders his decision and grants our request for Extended Reasons." It is hard to refute some of the logic in that last passage.[10]On 4 June 1999 the Chairman indicated that he saw no reason to review his refusal to give Extended Reasons. He said: "When the Summary Reasons were promulgated on 18 January 1999 it would have been obvious to you, if you had requested Extended Reasons, that there had been a mistake, and yet you took no action until 28 April 1999.[11]I can see some force in that observation but it does rather depend on the recipient of the Summary Reasons knowing that if a request has been made for Extended Reasons, they are never or seldom preceded by Summary Reasons. Whether that was known by the recipient is not made clear.[12]On 17 June 1999 Mr Turtle put a date on 2 Notices of Appeal and on 25 June 1999 the 2 Notices of Appeal were received at the Employment Appeal Tribunal against the decision of 17 May not to give Extended Reasons. One is an Appeal against the refusal to give Extended Reasons and the other has been treated as invoking the Employment Appeal Tribunal's discretion to permit a matter to proceed to appeal on Summary Reasons only.[13]By a letter bearing date, as it seems, of the 15 th October 1999, one lay member, Mr Hutchings, wrote that he had no notes of the hearing and had in effect not heard any application for Extended Reasons as having been made on the day. I am bound to say that he probably misdated that letter by 2 months and it probably was written on 15 December but that is, at any rate, what the letter says.[14]Then on 25 November there was a Preliminary Hearing here at the Employment Appeal Tribunal before Charles J and 2 lay members and directions were given as to the evidence to be produced by the appellant's side, as to evidence from the respondent's side and also as to eliciting notes and comments from the Tribunal's lay members and its Chairman. In the course of the judgment given on that day Charles J said:
"It seems to us that issues relating to "
Notice of Appeal No 2", namely whether this Tribunal should allow the Appeal to proceed on Summary Reasons and, if necessary, an extension of time should be dealt with at the same time as the Appeal against the Refusal to provide Extended Reasons." And the Order made on that day says (in the incomplete copy we have):-:
"FURTHER ORDERS that the forthcoming full hearing of the Employment Appeal an application for the Notice of Appeal dated the 17 th day of June 1999 on the basis of summary reasons only and for an extension of time in which to appeal."
[15]So those directions having been given on 9 December 1999, there was then a witness statement from Mr Alemoru, a witness statement from Mr Turtle and a witness statement from Stephanie Glaister, Mr Turtle's partner.[16]On 11 December 1999, the other lay member of the Tribunal panel, Mr Hale, wrote this:
"I regret I have no note of the exchange mentioned. That is a reference to the alleged oral exchange that took place at the end of the hearing. But he continued: "
I recall either Mr Turtle or his representative expressing disappointment at the decision and requesting the decision in writing as soon as possible, but I do not recall any reference to Extended Reasons."[17]On 14 January 2000 comments were made by Mr Hartley, the representative who had appeared for the respondent at the Tribunal Hearing. On 16 March the Chairman added some comments at length on the subject. It seems to us that there had been an unfortunate but understandable misunderstanding. Mr Alemoru, in his witness statement says:
"It was not until the Chairman had finished giving reasons that he announced that the application fails. At this point the Appellant said something like "that's ridiculous"
. Mindful of my responsibilities to ensure that the Appellant conducted himself in an appropriate manner I intervened and said in terms "Mr Turtle is obviously very disappointed by the decision. We request full written reasons for the decision" (although properly called Extended Reasons I was still in the habit of calling them by their previous name). The Chairman in response said in terms "Mr Turtle your representatives will in due course be sent written reasons for the Tribunal's decision".[18]Mr Turtle says, speaking of the very end of the oral hearing, "Mr Alemoru then immediately intervened and addressed some comments to the Chairman about wanting full reasons. The Chairman replied that he would supply them in writing'. As against that, Mr Hartley, the other side's representative says:
"I have no recollection of the Applicant's representative requesting full written reasons of the tribunal's decision;"
But he also says:
"But I have no recollection of the Appellant's representative requesting written reasons from the Chairman."
[19]It is not in real doubt but that there was a request for written reasons (as opposed to full written reasons) as Mr Hale specifically mentions a requesting of the decision in writing as soon as possible. And the Chairman, as will have been seen, recollects promising a written decision, an indication so strong that it was more likely to have been triggered by a request for a written decision than simply to have been indicated wholly unprompted and voluntarily. Otherwise, one would expect a Chairman simply to say something on the lines of "There will be written reasons in ordinary course"; to specifically remember promising them is more consistent with request for them having been made.[20]If Mr Hartley's recollection is therefore a little unsafe when he says there was no request for written reasons then it is also difficult to rely on him saying, that there was no request for full written reasons. Indeed, the Chairman in his very full letter of 16 March 2000 does not deny, except, at most, obliquely, that there was a request for full written reasons or for written reasons. He says, in effect, that there was no request for Extended Reasons which, of course, is different and his rather oblique comment is this:
"I also note from Mr Hartley's letter that he, too, has no recollection of Mr Alemoru requesting full written reasons for the decision."
[21]That passage was next after his setting out what he, the Chairman, understood the lay members to have been indicating and his logic is not easy to follow because in the preceding passage he describes whether any lay member had recollected a request for Extended Reasons. But then his comment as to Mr Hartley was as to a request for full written reasons. Had the Chairman wished to deny Mr Alemoru's and Mr Turtle's evidence as to a request for full written reasons or for written reasons one would expect him to have done so directly.[22]So the position on the evidence would seem to us to be this; that written reasons or full written reasons were requested orally, that extended written reasons were not in terms requested, that the Chairman did not understand there to have been a request for extended reasons and that Mr Alemoru and Mr Turtle took their oral request for full written reasons or perhaps for only written reasons to have been a request for extended reasons.[23]One has to bear in mind that written reasons albeit in summary form, issue in any event under the Employment Tribunal Rule 10(3) and, given also that what are now called Extended Reasons used to be called "full reasons" and that Mr Alemoru, who has 9 years experience of appearing in Tribunals had experience going back to when they were so called, one cannot describe as unreasonable the thought that a request for full written reasons or even for written reasons was a request for Extended Reasons.[24]Still less could it be regarded as unreasonable for the Appellant side to consider that a request Extended Reasons had already been made, although it had not been put in such terms, after their reflecting upon Mr Turtle's letter of 14 January 1999 which, as we have cited, expressed a desire to know how the Employment Tribunal had arrived at its decision and requested a written copy of the adjudication "As I wish to understand fully the thoughts and deliberation of the panel." Thus it was that the unfortunate misunderstanding arose and persisted.[25]Mr Turtle's side not unreasonably thought that a request had been made which would yield reasons of the character which are properly now described as "extended" (although the word 'extended' had not been used but that the words 'full written' or possibly only 'written' had been used) and yet the Chairman, not hearing the word "extended", (and indeed, no-one says it had been uttered had, not unreasonably, taken the view that there had been no request for extended reasons.[26]Given such a misunderstanding, if one next asks whether that unfortunate but understandable misunderstanding should, of itself, deny any appeal by Mr Turtle, the answer to us seem axiomatic. It should not. If that is right, then a choice presents itself. We can either, on the one hand, allow the appeal against a refusal to give Extended Reasons and require Extended Reasons to be given or, alternatively exercise our discretion to proceed with the appeal on the summary reasons.[27]Neither course is satisfactory but which is the least unsatisfactory. As to that, nowhere does the very experienced Chairman say that the matter is now so stale - the first day of the Employment Tribunal hearing was in late 1998 - that acceptable Extended Reasons cannot now be given. Yet, against that, one would hardly expect him to have given the time that he plainly has to composing or having composed on his behalf some 4 or so pages of typed letters and to a careful study of some 6 pages of witness statements and of less formal evidence if acceptable Extended Reasons could now be readily capable of composition. Extended Reasons, if still capable of composition, could well have taken less time than has the setting out of the reasons and the consideration of the matter on the Chairman's part. It is also true to say that nowhere is it indicated on his part that acceptable reasons could still be given. Accordingly, given the choice that we explained a moment ago, we are not really given adequate information as to which course to prefer and accordingly we will take an unusual step. If, within 14 days after a copy of a transcript of this judgment is sent to the Chairman, the Chairman indicates to the Employment Tribunal and to the Parties that it is, in his view, not now practicable for adequate Extended Reasons to be composed then, if that is the case, we order that the Appeal is to proceed upon the existing Summary Reasons and that the Chairman should be requested to supply as soon as practicable his notes of evidence given at the hearing and of submissions then made, which notes, in our view, would then be inescapably necessary if the Appeal were to be adequately conducted on the bare bones of the Summary Reasons.[28]Alternatively, if within that period of 14 days no such indication is given to the Employment Tribunal or to the parties, then we allow the Appeal and direct the Chairman within the further 4 weeks from the expiry of those 14 days to send the Extended Reasons to the parties. Whether in that latter case the Chairman's notes will become necessary will depend, in part at least, on the fullness of the Extended Reasons given and the issues arising out of them and we make no direction as to the Chairman's notes if that latter case proves to be the event. We would hope that the 4 weeks period which we have mentioned suffices in the latter case for the production of Extended Reasons as it will in effect be added to by some at least of the previous period of 14 days which we have specified and as the Chairman, in his letter of 16 March year, writes of his general practice of promulgating decisions within 4 week of the hearing.[29]In the circumstances, we think that the alternative forms of relief thus described are best we can do and we so order.