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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Moseley v. Service Direct (UK) Plc [2001] UKEAT 1157_00_1203 (12 March 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1157_00_1203.html Cite as: [2001] UKEAT 1157_00_1203, [2001] UKEAT 1157__1203

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APPEARANCES

 

For the Appellant	MR SIMON ROBINSON (of Counsel) Instructed By: Messrs Birchall Blackburn Solicitors 5 Waldorf House Cooper Street Manchester M2 2FW


 


MISS RECORDER SLADE QC:

1. This is the preliminary hearing of what are in effect two appeals against the decisions of a Manchester Employment Tribunal.
2. The Manchester Employment Tribunal had before it a short case on a claim for unfair dismissal. The sole issue that it was concerned with was whether the Applicant had sufficient continuity of employment to enable him to pursue his complaint. The determination of that issue depended entirely upon whether the Applicant's contract of employment was subject to statutory novation on 1 October 1999 brought about by the Transfer of Undertakings (Protection of Employment) Regulations 1981 ('TUPE').
3. On the issue of whether the Applicant's employment was subject to a TUPE transfer, the very short Summary Reasons given by the Employment Tribunal show that the majority found that the commencement of the employment of the Applicant with the Respondent on 1 October 1999 was not as a consequence of a relevant transfer of undertaking and was not otherwise to be treated as continuous employment, in relation to his employment with his previous employer.
4. Accordingly, the majority found that the Applicant had insufficient continuity of employment to bring a claim for unfair dismissal.
5. The minority of the Tribunal considered that the commencement of the Applicant's employment with the Respondent on 1 October 1999 was as a consequence of a transfer of an undertaking from the previous employer to the Respondent and that therefore he, the Applicant, did have sufficient continuity of employment to pursue a claim of unfair dismissal.
6. Difficulty has arisen by reason of the fact that the Summary Reasons of the Tribunal really do not contain the minimum outline of facts and reasons as to why, on the one hand the majority found that the Applicant's contract was not transferred under the TUPE Regulations, or why the minority concluded that that contract was subject to the statutory novation brought about by a TUPE transfer.
7. The Applicant appeared without representation before the Employment Tribunal. No request was made for Extended Reasons at the hearing. A solicitor appears to have been advising the Applicant prior to the hearing, but there was no funding for that solicitor to appear or arrange representation at the hearing.
8. The Summary Reasons were entered in the register and sent to the parties on 13 July 2000 and by letter dated 10 August 2000, the solicitor asked the Employment Tribunal Chairman for extended written reasons and for an extension of the period of 21 days, which had by then elapsed, for that request to be made.
9. Reasons for the delay in making that request were set out in the letter. It appears from those reasons that it was said that an application for emergency Legal Aid had been made on 1 August 2000 and that the solicitors, having heard nothing, made enquiries.
10. The solicitors wrote that they were told by the Legal Aid Board that since the request was faxed and that the Legal Aid Board do not accept faxed copies, a case worker had put the application in a bin. A complaint was made about such conduct and a hand delivery made of a further Legal Aid application. Legal Aid was finally authorised on 7 August, the time for requesting the Extended Reasons, of course, having by then elapsed. If the Legal Aid application had been processed expeditiously it is said that the request for Extended Reasons would have been made in time.
11. The Employment Tribunal Chairman refused the request for Extended Reasons. We have now before us the reasons given for that refusal, which were sent to the parties on 6 September 2000. It appears from those reasons that the Respondents had objected to the granting of the request for Extended Reasons.
12. The Tribunal Chairman had regard to the fact that the Applicant was legally represented throughout the proceedings. He observed that:

"It is unclear how professional legal advisers would seek to obtain emergency legal aid and Counsel's opinion on the substantive merits of an appeal armed only with the decision of the Tribunal in summary form".

He observed that professional legal advisers would know that

"in order to appeal to the Employment Appeal Tribunal it would be necessary to obtain extended reasons for the Tribunal's decision and to do so within the time limits set out in rule 10(4)."

The Chairman stated that he was satisfied

"having considered the interests of justice, (including the interests of both parties in that regard) and the circumstances in which the late request for extended reasons is being made, that this is not a case where it would be appropriate to exercise judicial discretion in favour of extending the time limit for requesting extended reasons."

13. This case certainly has a very muddled and unhappy history. It has not proceeded as it should. However, in summary, Mr Robinson who appears for the Appellant says that the refusal to grant Extended Reasons was a perverse one. He points to the reasons advanced in the letter of 10 August to the Chairman and contends that it appears from the Tribunal Chairman's decision that he paid no, or insufficient, regard to the way that the Legal Aid application was dealt with, that it was put in the bin.
14. Whilst recognising the approach of the Employment Appeal Tribunal to complaints that extensions of time have not been granted because of difficulties with Legal Aid applications, which was referred to in United Arab Emirates v Abdelghafar [1995] ICR 65, Mr Robinson urges us to take the view that this situation was out of the general run of excuses that Legal Aid was being applied for, namely that something went wrong with the Legal Aid application in that it was placed in the bin.
15. Further, Mr Robinson states that, if and insofar as the Chairman had regard to the third reason advanced by the Respondent for refusing the application for Extended Reasons, namely that the Respondent would be put to costs, the Chairman would have erred. It is said that the Respondent would not have been put to further cost and expenditure in the short term in that it was only if, having been given Extended Reasons, the appeal would survive a preliminary hearing that any question of further costs would arise.
16. However in our view the most compelling reason for considering, with care, this appeal against the refusal for Extended Reasons to proceed, is the interests of justice. The Tribunal Chairman expressed himself in those terms in refusing the request for Extended Reasons in that, having considered the interests of justice, the request should be refused.
17. In our view it is strongly arguable that taking such a view of the interests of justice in these circumstances was perverse and we have in mind, perhaps in particular, the fact that the Applicant before the Tribunal was unrepresented; that the documentation suggests that he was not legally represented throughout the proceedings, as is referred to in the Chairman's decision, but was in contact with his solicitor who it appears felt unable to pursue matters unless and until Legal Aid was granted. There was the unfortunate handling of the initial application for Legal Aid, to which we have referred, but, in particular, there is the brevity of the Summary Reasons. We are of the view that it is strongly arguable that, even if Summary Reasons are not intended to give a full explanation to the parties as to the reason for the outcome, these Summary Reasons do not give any explanation, or any real explanation, as to why the majority found that there had not been a transfer of an undertaking affecting the contract of employment of the Applicant. We consider it is arguable that, in the interests of justice, it was perverse of the Tribunal Chairman not to consider that the interests of justice required a granting of the request for Extended Reasons, albeit that that request was made out of time and albeit that those time limits apply whether parties are represented or unrepresented.
18. In those circumstances we consider that the appeal against the refusal to grant Extended Reasons should proceed to a full hearing.
19. We note that there is yet another unfortunate omission in that no Notice of Appeal containing this appeal has been served. The appeal against the refusal to give Extended Reasons for the decision was brought to the attention of the Employment Appeal Tribunal by way of a letter dated 4 September 2000. That is, strictly speaking, in breach of the Employment Appeal Tribunal Rules but again, in the interests of justice, we consider that the matter should nonetheless be permitted to proceed. A Notice of Appeal, in proper form, will have to be served in relation to this appeal and we give permission for that to be done. Such Notice should be lodged with the Employment Appeal Tribunal within 14 days. In the alternative, the Appellant in the letter of 4 September 2000, requests the Employment Appeal Tribunal to consider the appeal on the basis of Summary Reasons, exercising powers in the Employment Appeal Tribunal Rules 1993, Rule 39(2).
20. Turning now to the substantive appeal, the only ground of appeal currently included in the Notice of Appeal against the dismissal of the claim for unfair dismissal is a perversity allegation. We consider that the substantive appeal should not be dismissed at this stage. The progress of that appeal will be inextricably linked with whether or not Extended Reasons are given or if not, with whether the application under Rule 39(2) succeeds.
21. In our view it is arguable that the Employment Appeal Tribunal can exercise a discretion under Rule 39(2) to dispense with the requirement for Extended Reasons as occurred in Wolesley Centres Ltd v Simmons [1994] ICR 503. We direct that the application under Rule 39(2) in the substantive appeal be heard together with the appeal against the refusal to give Extended Reasons. If, but only if, that appeal or application succeeds, the substantive appeal will go forward to a full hearing, for which the Appeal Tribunal may give consequential directions for permission to amend the Notice of Appeal and for the production of the Chairman's Notes of Evidence.
22. We order that there be exchange of skeleton arguments, not less than 14 days before the date fixed for the hearing. Listing Category C. Length of time for the appeal against the refusal of Extended Reasons together with the application under Rule 39(2), two hours.
23. We would like to emphasise the importance of complying with all Orders and Rules of the Employment Appeal Tribunal.