ANDREW WILLIAM ARMSTRONG v WALTER SCOTT MOTORS (LONDON) LIMITED [2002] UKEAT 1152_01_1607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1152_01_1607Case No Appeal No. PA/1152/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ANDREW WILLIAM ARMSTRONGAPPELLANTWALTER SCOTT MOTORS (LONDON) LIMITEDRESPONDENT
Before
His Honour Judge Peter ClarkDate 16 July 2002
[1]APPEARANCES For the Appellant MR TOM WALKLING (Representative) Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ For the Respondent MR MARK WALSH (Of Counsel) Instructed by: Messrs Edwards Duthie Solicitors 292-294 Plashet Grove East Ham London E6 1EE JUDGE PETER CLARK This is an appeal by Mr Armstrong against an order of the Registrar dated 19 October 2001, refusing an extension of time for appealing against a decision of the London (South) Employment Tribunal. Background[2]The Appellant was employed by the Respondent between 14 October 1999 and 11 October 2000. He then presented an Originating Application to the Employment Tribunal complaining of unfair dismissal, that is dismissal for an inadmissible reason under section 104 of the Employment Rights Act 1996, breach of contract and unlawful deductions from wages. The claims were resisted.[3]The matter came before an Employment Tribunal chaired by Mr C P Baron sitting on 17 May 2001. On that day no decision was reached by the Employment Tribunal; it was reserved. On 21 May the Employment Tribunal wrote to the parties indicating that the panel would meet in private to consider the case and that a written decision would be sent to the parties as soon as possible after that date. A remedies hearing had been provisionally booked for 8 June, but on 23 May the Tribunal decided to dismiss the Appellant's claims. Consequently on 25 May the Employment Tribunal wrote to the parties informing them of the panel's conclusions and cancelling the remedies hearing. That letter concluded: "The Decision with reasons will be sent as soon as possible".[4]On 27 June 2001 a document headed 'DECISION OF THE EMPLOYMENT TRIBUNAL' was sent to the parties. It gives the date of hearing as 11 May and the date of the Chambers meeting as 17 May 2001. Those dates should read 17 and 23 May respectively.[5]There is then a section headed 'DECISION', dismissing the Appellant's various claims, followed by a section headed 'REASONS'. The document ran to 9 pages.[6]Throughout these proceedings the Appellant has been represented by Mr Walkling, a trainee barrister under the Free Representation Unit Pro Bono Scheme. On 3 July Mr Walkling wrote to the Regional Secretary of the Employment Tribunals at Croydon asking for extended reasons in this case. That letter was acknowledged on 13 July by the Employment Tribunal; the letter was receiving attention. On 23 July the Tribunal wrote again to Mr Walkling in these terms:
"The Chairman, Mr C Baron, notes your letter of 3 rd July 2001. The Chairman sends his apologies, the reasons promulgated on 27 June 2001 were in Extended form although they omitted to state that fact."
[7]That letter was sent to the Free Representation Unit offices. Mr Walkling tells me, and I accept, that the letter was opened by staff at the office but no action was taken until 17 August. Mr Walkling then settled a notice of appeal and dated it 18 August. It was finally received by the Employment Appeal Tribunal on 28 August.[8]On 23 August Mr Walkling applied for an extension of time for appealing. In that application he said at paragraph 7:
"It should be noted that the Notice of Appeal has been served within 42 days of the letter notifying us that the reasons promulgated were in extended form being sent to the Appellant."
[9]Thus, the Notice of Appeal it is common ground was in time if time ran from the Employment Tribunal's letter of 23 July and out of time if it ran from the date of the promulgation of the Employment Tribunal's Decision, 27 June 2001.[10]That application for an extension of time was opposed by the Respondent and having considered the parties' written representation the Registrar made her Order refusing an extension of time. That Order sets out her reasoning, including the following:
"UPON CONSIDERATION of the fact that even though the Appellant thought the reasons received from the Employment Tribunal were not extended reasons, there was sufficient information therein to draft grounds of appeal as they were in fact the extended reasons. AND UPON CONSIDERATION of the fact that the forty two day appeal limit is strictly applied and no extension is granted within the rules for further time to appeal when summary reasons only are received from the Employment Tribunal;"
[11]The Registrar then proceeded to reject, as unacceptable, the reasons given for failure to lodge the Notice of Appeal, namely delay in the Free Representation Unit offices. I say at once that I entirely agree with that approach and would dismiss the appeal if time for appealing in this case runs from the date of the Employment Tribunal's decision, 27 June. However, the real question, it seems to me, is when does time begin to run?[12]Mr Walkling submits that Rule 3(3)(a) of the Employment Appeal Tribunal Rules provides that the period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision or order of the Employment Tribunal were sent to the Appellant. Rule 3(1)(c) requires the Appellant to serve with his Notice of Appeal a copy of the Extended Written Reasons for the decision or order of that Tribunal.[13]Rule 12(3) of the 2001 Employment Tribunal Rules of Procedure provides:
"The Tribunal shall give reasons for its decision in a document signed by the Chairman. That document shall contain a statement as to whether the reasons are given in summary or extended form ..."
[14]Thus, reverting to the document signed by the Chairman and dated 27 June 2001 Mr Walkling submits that it is defective on its face. It does not comply with the mandatory requirement in Employment Tribunal Rule 12(3), stating whether the reasons are in summary or in extended form. He submits that it is not a decision with extended written reasons for the purposes of Rule 3 of the Employment Tribunal Rule of Procedures.[15]Mr Walsh on behalf of the Respondent submits that as a matter of fact the reasons attached to the Employment Tribunal's decision of 27 June were extended reasons and were obviously so. He relies on the Employment Appeal Tribunal Practice Direction at paragraph 3(7) which advises potential Appellants in any case of doubt or difficulty to serve a Notice of Appeal in time and then they can apply to the Registrar for directions. He submits that is the course which the Appellant should have taken in this case.[16]Further he has referred me to the case of Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111 and in particular the fact that in that case the reason for seeking an extension of time for appealing by the Commission for Racial Equality the potential Appellant's advisers was a claim that it was unclear on the face of the Tribunal's reasons what was the date of promulgation. The Court of Appeal accepted that the date was unclear but there was no suggestion that the decision and reasons were in any way defective rather that it was unclear as to the date of promulgation. What seems to have caused the application for an extension of time to come to grief was that whereas the Commission for Racial Equality contended that the date of promulgation on the face of the decision was 27 March that overlooked the Commission for Racial Equality's own date stamp at the beginning of the decision which showed that they received it on 26 March.[17]Dealing with those last 2 points, for the purposes of paragraph 3(7) of the Employment Appeal Tribunal Practice Direction the questions still remains, when did time begin to run in this case commencing the period of 42 days in which the Notice of Appeal ought as a matter of good sense to have been lodged?[18]As to the case of Aziz , there was no suggestion of procedural error. I return to Mr Walkling's submission. It seems to me that it is mandatory that a decision if it is to be a decision regarded as a decision with extended reasons for the purpose of starting time to run for appeal must expressly state that the reasons are in extended form. The failure to so state, it is accepted by Mr Walsh, is a procedural error.[19]I accept that concession and I hold that until at the earliest the Chairman had, through the Secretariat, written to the parties on 23 July stating that the reasons were intended to be extended reasons time did not begin to run. As a matter of strict procedure the omission of the word extended before the word reasons in that Employment Tribunal's decision ought to have been corrected by a Certificate signed by the Chairman under the slip rule; that is Employment Tribunal Rule 12(8). That has not been done in this case. However, I am prepared to treat the Employment Tribunal Secretariat's letter of 23 July as curing the defect from that date. However, I shall not treat it as having retrospective effect; to do so would wrongly deprive the Appellant of a timeous appeal in my judgment.[20]For these reasons I shall allow the appeal to the extent that I direct that the appeal now be registered and sealed for the purposes of Rule 4 of the Employment Appeal Tribunal Rules.