Appeal No.	 EAT/354/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 July 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR P DAWSON OBE
MR R H PHIPPS

MR P POWNEY-JONES	APPELLANT

ELECHECK (EST) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR P NICHOLLS
(of Counsel)
Messrs Hewitson Becke & Shaw
Solicitors
Shakespeare House
42 Newmarket Road
Cambridge
CB5 8EP	

	MR JUSTICE MORISON (PRESIDENT):   Mr Nicholls if I might say so in an able submission to us, has invited us to accept that we should proceed with an appeal in this case, despite the fact that the Chairman’s decision is purportedly in summary reason form. 

	There is no doubt that in the normal course of events the Employment Appeal Tribunal requires extended reasons from an Industrial Tribunal before it will entertain an appeal. Our Rules expressly require a copy of the extended reasons and we, by a Practice Direction permit parties, where appropriate, to appeal to this Court against an Industrial Tribunal’s refusal to provide extended reasons in appropriate circumstances.

	Some summary reasons are more summary than others, and it would be correct to say that this decision which was sent to the parties on 6th December 1996 is much more full than some summary reason decisions which we have seen in the past. But in order to understand why we have arrived at the conclusion that we should not accede to this application, it is necessary for us to refer to the terms of the decision and the background to the dispute between the parties.

	The applicant before the Industrial Tribunal, the prospective appellant, Mr Powney-Jones, entered into a contract with the respondent company, Elecheck (EST) Ltd. That contract is evidenced by a letter dated 25th September 1995 sent to the applicant. In that letter the following paragraph appeared:

“We can offer a guaranteed payment of £1,350 per month for an average 32 hour week, plus fuel costs & a sum of £100 per month as a contribution for our van.”

	The relationship between the parties did not mature as it had been anticipated, and the arrangements came to an end, and an application was made to the Industrial Tribunal that there had been wrongful deductions under s.13 of the Employment Rights Act 1996. 

	The applicant’s claim was found by the Industrial Tribunal Chairman sitting alone to be well founded to the extent of £635.15. It is possible from looking at the summary reasons how that sum was calculated. 

	In his IT1 the employee was asserting that he was entitled to £1,350 per month whether or not he worked those hours. 

	In the employer’s IT3 they said this:

“In December, January and March the Applicant’s recorded hours fell far short of the agreed 32 hour per week - in December and January only 97 hours were completed and in March only 47 hours were completed. Although the Applicant record 153 hours in February the Respondents, after investigation, concluded that the hours recorded exceeded those worked.
Full payment was made to the Applicant for December and for January on agreement being reached with him that he would work extra hours over the following months to make up for the shortfall. The Applicant was given the option of being paid pro-rata for hours worked but refused the offer.”

	The Industrial Tribunal Chairman in the summary reasons asked the question, what is the true meaning of the letter of 25th September, and, he concluded, that it meant that provided that the applicant worked an average of 32 hours per week over a month, the employer would guarantee to pay him £1,350 plus fuel costs plus £100 per month for use of the applicant’s van. Accordingly he came to the conclusion, as we understand it, that the entitlment to wages was dependent upon the number of hours which the applicant worked in a month over the period of the contract.

	In his Notice of Appeal, the appellant wishes to argue as follows:

“In the premises the Respondent agreed to pay to the Appellant the sum of £1,350 per month and to provide not less than 32 hours per week, together with payment of fuel costs and £100 per month by way of contribution for the use of the Appellant’s van which payment was guaranteed.”

It is then asserted that:

“The appellant worked all hour required of him by the Respondent. In certain months the Respondent failed to provide 32 hours work per week to the Appellant.”

	It seems to us that the appellant therefore wishes to argue that on a proper construction of his contract than he had entered into, he was entitled to be paid for 32 hours per week during each month, whether he worked those hours or not, in circumstances where his employers had failed to make 32 hours of work per week available to him. That if the employers did not provide such work to him he was entitled to the guaranteed payment, but presumably if the work was available and he did not work it, then he would accept that he was not entitled to the guaranteed payment.

	That is a construction of the agreement which we consider to be probably correct. In other words, the question for the Industrial Tribunal should probably have been what hours did the applicant work. If he worked for less than 32 hours per week average in a month, what was the reason why? If the reason was because no work was provided to him, then the guaranteed payment should have been made. If, on the other hand, it was because the employee failed to work that which was available to him, then he was entitled only to be paid pro-rata. 

	It does not appear from the IT1 or the IT3 that the argument which the appellant wishes to put forward was in fact an argument addressed to the Industrial Tribunal. It seems to us, looking at the IT1 and IT3 and the decision of the tribunal, that it was appellant’s then case that he was entitled to his guaranteed payment no matter what the reason was why he did not work the 32 hours average per week during any one month.

	We cannot say with any certainty that that was the position because it can properly be said that the Industrial Tribunal Chairman’s decision does not appear to deal with any question as to the availability of the work. 

	Mr Nicholls suggests that the reason why the tribunal did not consider that question was because of the construction which the Chairman had adopted in paragraph 4 of the decision.

	We do not know, because this is a summary decision only, either whether the employee argued that which is sought to be argued now, or whether in the extended reasons, the tribunal Chairman dealt with the submission if it had been made.

	Accordingly, it seems to us, that if an extended reason decision would have shown that the argument was addressed to the tribunal and was dealt with by the Chairman, it would be unfair to consider the decision in its summary form. That is unfair to the parties and unfair to the Chairman. If the submission was not made to the Industrial Tribunal, then this would unquestionably be the sort of point which we would not entertain on an appeal, bearing in mind that it would require further findings of fact to be made by the Industrial Tribunal.

	It is to be noted that the employee in this case had the benefit of being represented by a solicitor at the Industrial Tribunal. When a decision is sent to the parties, it is accompanied by literature which makes it quite plain that if an appeal is to be lodged an application should be made timeously to the Industrial Tribunal for extended reasons. That application is required to be made by the Rules within 21 days of the date of promulgation of the decision in summary form. An application was made to the Industrial Tribunal out of time for extended reasons. No good reason being advanced to excuse the delay, the tribunal refused to give extended reasons.

	For the reasons we have attempted to give, it seems to us that it would be unfair and inappropriate to attempt to hear an appeal against a decision expressed in summary form only, having regard to the arguments which the appellant wishes to raise in this case.

	It seems to us that justice demands that there should be a decision in extended reason form as is required by our Rules, recognising, as we do, that this was a fuller summary decision than others we have seen. But on the crucial question the decision is silent. That may be, as Mr Nicholls suggests, because the tribunal erred in law. It may be because the point was never argued. It may be because the decision is in summary form and would have said more on this point had it been in extended form. 

	Accordingly, it seems to us that we should not entertain this application. We should not be prepared to consider this decision as it stands in all the circumstances and in the exercise of our discretion.

	We should add, although this is not a ground for our decision, that we have no reason to believe that the Industrial Tribunal’s decision in this case was other than correct having regard to the terms of the IT1 and the IT3. We therefore consider that it would have been unlikely that Mr Powney-Jones would have recovered any more money than he was awarded by the Industrial Tribunal.