MISS M J SWINBOURNE v BIRMINGHAM CITY COUNCIL [2001] UKEAT 681_00_2806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 681_00_2806Case No Appeal No. EAT/681/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS M J SWINBOURNEAPPELLANTBIRMINGHAM CITY COUNCILRESPONDENT
Before
Mr Justice Nelson Ms B Switzer Professor P D WickensDate 28 June 2001
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent MR THOMAS ROCHFORD (of Counsel) Instructed by: Director of Legal Services Birmingham City Council Legal Services Department Ingleby House 11-14 Cannon Street Birmingham B2 5EN MR JUSTICE NELSON This is an appeal against the decision of the Employment Tribunal at Birmingham, unanimously deciding that the Applicant was not constructively dismissed in a Decision dated 22 December 1999. It is also an appeal against the decision of that Tribunal not to give Extended Reasons on the grounds that they were out of time, that decision having been made on 11 May 2000.[2]The Appellant has not attended this appeal through ill-health and other reasons, and asks that we deal with the matter in her absence. We do so, having read all the papers and the written submissions made on her behalf and by her, and we have heard the matter argued by Counsel on behalf of the Respondent.[3]At the preliminary hearing, appeals were sent to full hearing on two bases: firstly that the Chairman's decision refusing to give Extended Reasons was not properly reasoned, and secondly whether the substantive appeal could be dealt with solely on the Summary Reasons, as set out.[4]The IT1 complains of constructive dismissal by reason of requirements that the Appellant should lift when pregnant; failures to provide her with a safe place of work, in that burglaries and assaults occurred during the course of her employment involving her and that there was a lax system of security permitting such attacks and assaults to occur, which caused the Appellant considerable difficulties.[5]She had an excessive workload, inadequate training and there was a failure to deal with her concerns generally, which led to her becoming ill. There was, in addition, a failure to deal with paid leave properly. The fact that these led to her serious illness, ignoring all her concerns as they were made, amounted to, it was contended, a fundamental breach of contract.[6]The Appellant had been represented by solicitors up to a reasonably short time before the matter was due to heard by the Employment Tribunal, but those solicitors withdrew. The Employment Tribunal heard her application for an adjournment, refused it and heard her complaints. They dismissed her complaints and gave their decision at the end of the hearing on 25 and 26 November 1999, with reasons to follow; those reasons followed in brief summary form on 22 December 1999.[7]The first matter which became entirely clear to us on the reading of the papers was that it would be exceptionally difficult to deal with the substantive appeal on the basis of the material before us. The nature of the appeal is that the findings were perverse and procedural errors were made. The Summary Reasons do not enable us to make any decision on the appeal, and the fact that perversity lies at the heart of the appeal makes it inevitable that no substantive appeal can be heard on the Summary Reasons alone.[8]This submission made in the Respondent's Skeleton Argument, we find has to be accepted and we unanimously do so. The substantive appeal cannot therefore be determined on the basis of the information in Summary Reasons before the Employment Appeal Tribunal. The main question which arises is whether the appeal against the refusal to give extended reasons should be allowed. The decision states why the Chairman refused to give extended reasons as follows:
"I am directed by a Chairman (Mr S Ahmed) to say that under Rule 10(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."
[9]It is necessary before considering the nature of the appeal in relation to the refusal to give Extended Reasons to look at the chronology. The Appellant began her employment on 8 October 1993 and resigned on 28 April 1998. Her Originating Application is dated 26 June 1998, and as I have indicated, was heard on 25 - 26 November 1999, at the end of which the actual decision, namely that claims would be dismissed, was given.[10]The Summary Reasons were sent on 22 December 1999. This meant that the last day for requesting Extended Reasons for the purposes of an appeal expired some 21 days later, on 13 January 2000. During the course of argument, Mr Rochford has submitted that whilst it is correct that the time limit expired on 13 January, it has to be borne in mind that as the decision itself to dismiss the claims was given on 26 November, the Appellant had, effectively, an additional four weeks in which to make up her mind and decide how to deal with the matter.[11]The decision which is sent out by an Employment Tribunal should contain with it the explanatory notes prepared by the Regional Office of the Industrial Tribunals. On 7 April 2000 the Employment Appeal Tribunal pointed out to the Appellant in a letter which said that she must file a copy of the Extended Reasons before submitting her appeal, that extended written reasons and the time for applying for them is set out in the explanatory notes sent with the Employment Tribunal Decision. The Appellant has not, at any time, suggested that the normal course of events was not followed in this case, and that those explanatory notes were not sent with the Reasons.[12]We deal with the matter on the basis that in those circumstances, it is reasonable to infer that the normal practice was followed and that the explanatory notes were in fact sent out. In paragraphs 1, 3 and 19 of those notes it makes it plain that if an appeal is to be made against the decision, full reasons as opposed to summary reasons will be required.[13]This is set out in paragraph 3 expressly, and again expressly, in paragraph 19. The Appellant says that on 1 March 2000, she sent a letter to the Employment Tribunal of which we have a copy, which was received by the Employment Tribunal on 1 March 2000, but is itself undated. This is effectively the grounds of appeal and does not make any reference to extended reasons or any request for them.[14]After that the next actual step was that on 20 March 2000 when a Notice of Appeal was formally served by the Appellant. Between those dates, as becomes clear from her grounds of appeal, at paragraphs 31 and 32, and indeed 33, the Appellant says that she had contact with the Employment Tribunal office. After she had written to them on 1 March, or the letter received on 1 March 2000, she received no response from them. She therefore telephoned them and was told that her correspondence had been put with her file, which was downstairs in the Employment Tribunal offices, and that the Chairman was preparing the Extended Reasons.[15]She wrote to the Employment Appeal Tribunal on 20 March, and on 28 March the Employment Tribunal returned her notes with the suggestion that she wrote to the EAT. On 7 April the EAT wrote to her, in the letter I have already indicated, informing her that she must first have extended written reasons. She sent, by letter received, undated again, but received on 12 April 2000 at the Employment Tribunal in Birmingham, a letter in these terms:
"I would be grateful if you could supply a copy of the extended reasons as requested by the Employment Appeal Tribunal. Thank you for your assistance"
A simple request for the Extended Reasons.[16]On 11 May, as I have indicated, the Chairman refused to provide those reasons on the grounds that they were out of time. On 24 May the Notice of Appeal against that decision was served and on 25 October last year, there was the preliminary hearing which as I have indicated, sent the matter to full hearing on the two bases already set out in this decision.[17]On 8 December the Employment Tribunal Chairman wrote, dealing with his refusal to extend reasons, setting out therein the manner in which he had dealt with it. He said in that letter that he had no objection in principle to providing extended reasons:
"if the Employment Appeal Tribunal would find this helpful. However, in exercising my discretion to provide extended reasons out of time without an indication from the EAT" he said "
I have to take into consideration the severe prejudice that would cause to the respondent. The applicant would automatically receive an extension of time in which to lodge her appeal when the original time limit for an appeal had expired by some considerable time. I cannot comment upon any other correspondence that the applicant may have sent but not received by the tribunal as all incoming post is dealt with by the administration staff. I have confined my comments to the documents that are on the tribunal file." He added that he would be perfectly content to provide extended reasons if the Employment Tribunal would find them helpful in arriving at its decision, albeit that the case was now heard over a year ago. That letter was dated 8 December 2000.[18]The manner in which the matter was dealt with is criticised, as has been indicated, on the basis that the decision does not give any adequate reasons as to why the matter was refused. The Respondent submits, in relation to that, and I summarise in short form the contents of his Skeleton, that it is now far too late, and was then, to order extended reasons. There is no evidence that the Chairman's colleagues could now give them; that there is no proper explanation ever tendered as to why the Appellant delayed so long before requesting extended reasons, or starting the appellate process; there is nothing that can be properly challenged in the reasons put forward by the Chairman for refusing, as he clearly stated that he was refusing to extend time, as the matter was out of time, and the use of the word "appropriate" in the course of its decision, indicates that he gave adequate consideration to it.[19]It is said therefore that for these reasons, the appeal against the refusal to give extended reasons must be dismissed. It is submitted that when one looks at the letters sent by the Appellant, none of them give any reason for the delay in applying for the extended reasons so late. Indeed nowhere are any reasons for the delay set out save, references in some of the documents to seeking assistance from Counsel on 11 January 2000, and receiving that, writing to the Equal Opportunities Commission in mid-February, and being told by them that extended reasons were required.[20]When the application for Extended Reasons was made to the Chairman of the Employment Tribunal, what faced him was the simple application of 12 April 2000, significantly out of time, with no reasons set forward for the delay. It is submitted that if one takes 1 March 2000 as being the effective date when reasons were asked for, even though the extended reasons are not mentioned in that letter, that makes the Appellant six weeks out of time. If it is not until 12 April when the formal document asking for extended reasons, expressly, was sent then she was ten weeks out of time.[21]During the course of argument, we have been reminded of the Decision of Savill v Southend Health Authority [1995] 1 WLR 1254 dealing with requests for extension of time, where no explanation for the delay is given, and I quote from the decision of

Lord Justice Balcombe at page 1259, where he says as follows:

"I have to say that the authorities are not all entirely easy to reconcile. I prefer to go back to first principles and to the statement made by Lord Guest in the Ratnam case [1965] 1 W L R 8 ,12 that in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. He went on to say, and it is worth repeating: "
If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a timetable for the conduct of litigation." It seems to me that the statement applies as much to a minimal delay as it does to a substantial delay. Realistically, the court may be satisfied with an explanation for a minimal delay, even possibly forgetfulness, which it would not accept for a substantial period of delay. Nevertheless, there must be some material on which the court can exercise its discretion. There was no such material before the judge." There was no material here upon which the Chairman of the Employment Tribunal could find that there were grounds for extending time. He did, of course, know the history of the matter, as he himself had dealt with it, and he was, of course, asked for extended reasons late, with no reason.[22]We have come to the conclusion that in all those circumstances, it was entirely proper for him to refuse the application. It was too late on any basis: six weeks out of time, with no reasons put forward as to why it was late, the decision cannot itself be criticised.[23]We turn to consider the language used by the Chairman in refusing the extension. We approach the matter on the basis that this is an interlocutory application to extend time and give extended reasons, not the final decision on the merits after a hearing. We are satisfied that nevertheless, the Chairman should make it clear what he is saying it. We consider that in saying, as he did, that he did not consider it appropriate to issue extended reasons, the Chairman indicated that he had considered the matter properly, and the fact that he added "unless the Employment Appeal Tribunal orders him to do so" does not render that Decision incorrect.[24]We are, therefore, satisfied that this ground of appeal must also fail. Time limits have to be obeyed, and whilst the fact that the Appellant in an unrepresented litigant has been borne in mind by us, we see no reason for saying that the Chairman's decision in this particular case involved any error by him, nor indeed, in the manner in which the decision was expressed. The appeals will therefore be dismissed.