MRS C FLANIGAN v DISABLED LIVING LTD [2001] UKEAT 776_01_0511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 776_01_0511Case No Appeal No. EAT/776/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C FLANIGANAPPELLANTDISABLED LIVING LTDRESPONDENT
Before
His Honour Judge A WilkieDate 5 November 2001
[1]APPEARANCES For the Appellant MS J BROWN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE A WILKIE QC The Appellant in this case, who was the Applicant in the Employment Tribunal, seeks to overturn a Decision of a Chairman of Employment Tribunals dated 14 May of this year, refusing her request for Extended Reasons of an earlier decision, on the basis that the request for Extended Reasons was made outside the twenty one days from the date when the original Decision was sent to the parties.[2]The original Decision was to dismiss the Appellant's application that she was unfairly constructively dismissed. The Decision followed a four day hearing which took place on 29, 30, 31 January, and 14 March. That Decision was sent to the parties on 23 March of this year. It was a decision appended to which were Reasons given in summary form. That form of Reasons was in accordance with Rule 10(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 and although Ms Brown, who has admirably represented the interests of the Appellant in this matter, indicates that her personal experience as an advocate before the Tribunals is that it is the exception rather than the rule to send Decisions out in summary form, she does not suggest, nor could she sensibly suggest, there was any impropriety in the Tribunal sending out its Reasons in summary form.[3]At any rate, attached to that Decision and the Summary Reasons was a document entitled "Notes on Tribunal Decisions". That note sets out in a number of numbered paragraphs the various options open to someone receiving a decision which is adverse to them. Paragraph 3 is headed "Reasons in Extended or Summary Form" and it reads:
"The reasons for the decision state whether they are in extended or summary form. If the reasons for your decision are given in summary form, you may request that the tribunal give extended reasons. If you are going to appeal against the decision you will need extended reasons, (see paragraph 18 below). The request for extended reasons must be made in writing within 21 days of the date on which the decision was sent to you. This date can be found stamped on the decision document. Your request should be sent in writing to the Regional Secretary of the Tribunal."
[4]One of the options available to a party to the Tribunal receiving a decision is to seek a review of the Tribunal's decision and paragraph 12 of this document deals with that and it says:
"In certain limited circumstances, the Employment Tribunal may be asked to review and, if appropriate, change and revoke its own decision. Provisions relating to such a review are set out in Rule 11 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 (as amended). These Regulations are obtainable from HM Stationery Office bookshops or through booksellers."
[5]Paragraph 13 then sets out in summary form, the grounds upon which a tribunal has a power to review its decision and in paragraph 14 it says:
"If you wish to apply for a review you should do so in writing to the Tribunal which dealt with your case before the end of the period of fourteen days after the date on which the decision was sent to you."
The next part of that document is headed "Appeal Against Tribunal's Decision". Paragraph 16 provides that:
"An appeal against a tribunal decision may (with one exception) only be made on a point of law, that is to say it is considered that the tribunal has made a mistake in the application of the law relating to the issues before it."
The exception to that is " a decision which is inconsistent with the evidence or has been taken in the absence of evidence of matters upon which it is based, may be wrong in law. However, the tribunal is the sole judge of the facts and no issue of law arises if the tribunal simply misunderstood or misapplied the facts."[6]Paragraph 18 of the document provides that the Notice of Appeal should be accompanied by a copy of the Employment Tribunal Decision and a copy of the extended written reasons for it. "If you have received the decision giving only summary reasons, you should request extended reasons" And it refers back to paragraph 3 of the note. It then provides:
" the notice of appeal must be served on the Employment Appeal Tribunal within 42 days of the date on which the extended written reasons for the decision which is the subject of the appeal, was sent to you."
Finally, in that paragraph it says that an application for review does not alter the time for the Notice of Appeal which continues to run. Action to appeal may be taken while awaiting the result of an application for review.[7]Mrs Flanigan was, apparently, at one stage in these proceedings legally represented. However by the time the question of an application for a review or an appeal against the Tribunal's Decision was being considered, she was acting effectively in person, though with the assistance of a friend, Mr John Wallington who wrote a number of letters to the Employment Tribunal at the Regional Office.[8]On 5 April, that is to say just within the fourteen days time limit for requesting a review, he wrote to the Tribunal a letter in which he said, amongst other things:
"I note from the accompanying correspondence, that my client has both the right of appeal and can also request the Tribunal to revise its decision. I am still awaiting a copy of Rule 11 of the Employment Tribunals Regulations 1993, but in order to comply with the time limit I wish to register my clients request for a review of the decision through this letter, pending receipt of the Regulations"
. It is apparent that Mr Wallington had read the notes appended to the Employment Tribunal Decision, was aware of the two possible routes, namely an appeal and an application for a review, was aware of the time limit applied to a review, and had read it in sufficient detail to note the reference in that explanatory document to Rule 11 of the Employment Tribunal Regulations which deals with the question of review.[9]On 24 April, Mr Wallington wrote a letter to the Employment Tribunal in which he indicated that he had still not received a copy of Rule 11, intended to get access to a copy of this by the end of the week and would write commencing 30 April with the specific reasons for the request for the review. He indicated that he appreciated that this had gone beyond the time limit but requested:
" an extension of this due to the circumstances."
[10]On the same date, Mrs Flanigan wrote to the Tribunal giving notification of a change of address and she said:
"I have since moved [to the address above] and as I applying for a review of the decision and possibly appealing against the decision as it currently stands, I would appreciate it if you could amend your records to show my new address, as shown above."
So at that stage she was still minded to pursue one, or other, or both, the routes to which reference had been made in the notes on Tribunal decisions.[11]On 26 April Mr Wallington wrote to the effect that they had now studied the Employment Tribunal Regulations and his client wished to appeal against the Tribunal's Decision and requested a copy of the extended written reasons for the Decision which he understood must accompany the appeal. That was a request for Extended Reasons which fell outside the time required by the Regulations and referred to in the Notes on Tribunal Decisions and in particular, paragraph 3. It was that request for an extension of time which the Tribunal Chairman refused on 14 May.[12]It must be said that in the meantime there had been the Easter Bank Holiday, and although that may have affected to some extent the speed with which things were done, it was not referred to in that letter, though Ms Brown has, on instructions, referred to that in the course of her argument. In effect, what Ms Brown's argument amounts to is this: that the Tribunal Chairman must have realised that although Mrs Flanigan was represented by Mr Wallington, he was not purporting to be a professional representative and that accordingly, no reasonable Chairman of the Tribunals could have failed to extend the time for requesting Extended Reasons, given the history of correspondence between Mr Wallington and Mrs Flanigan and the Tribunal.[13]In our judgment, although attractively put by Ms Brown, this is a hopeless appeal. The Notes on Tribunal Decisions are clear and comprehensive. They set out virtually at their beginning the two types of Reasons, extended or summary, and make it plain both in paragraph 3 and paragraph 18 that an appeal may only be launched on the back of Extended Reasons and that there is a time limit for applying for Extended Reasons. It is clear that Mr Wallington had read this document and had absorbed it. He had absorbed the distinction between a review and an appeal; he had absorbed the fact that there were different time limits which applied to the different processes, because he was astute to preserve Mrs Flanigan's position vis à vis a review by requesting one within the fourteen days, and although it is plain that he was having some difficulties in obtaining the Regulations from HMSO, there was nothing to prevent him reading and understanding the Notes and Tribunal Decisions and making a request for Extended Reasons within time.[14]Therefore we can find no basis upon which an appeal against the Tribunal Chairman's Decision, which was a matter for his discretion can be said to have been perverse or such that no reasonable Chairman would have come to. It therefore follows that the appeal against that Decision has no reasonable prospect of success and we therefore dismiss it at this stage, without the need for an inter partes hearing.[15]There was a second string to the Appellant's bow, namely a request that this Tribunal should entertain the appeal on the basis of the Summary Reasons for the Decision, Ms Brown though formally advancing it did not do so with any enthusiasm, because as she properly recognised, effectively this appeal against the substantive Decision of the Tribunal was an appeal based exclusively on perversity, and although the Summary Reasons are of some length, she acknowledges, and we agree with her, that it would be quite hopeless to seek to argue a perversity appeal on the back of a Summary Reasons Decision.[16]Therefore, although noting that this application was made, we note the lack of enthusiasm with which it was made and we refuse it.