Appeal No. EAT/62/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 May 2001

Before
SIR CHRISTOPHER BELLAMY QC
MISS A MACKIE OBE
MR G H WRIGHT MBE

MR P BOSTOCK	APPELLANT

PLATSOFT	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	The Appellant in person	

SIR CHRISTOPHER BELLAMY QC

1	This is an appeal by Mr P A Bostock which comes before us today by way of an ex-parte preliminary hearing for us to determine whether there is an arguable point of law on this appeal.  It is of course only if Mr Bostock can demonstrate that there is an arguable point of law in the circumstances of this case that we have jurisdiction to allow the appeal to go forward.

2	The chronology of this case is somewhat tangled but may be briefly summarised as follows:  Mr Bostock lodged his IT1 on 9 June 2000 complaining to the Employment Tribunal about a commission scheme offered by his employers which he said did not materialise.  

3	The hearing before the Employment Tribunal was on 1 September 2000.  At the end of the hearing on that day Mr Bostock was apparently told that he had lost his appeal and that the reasons would be sent to him shortly.  

4	On the evening of that day (that is to say later on 1 September) Mr Bostock wrote to the Employment Tribunal seeking a rehearing on the grounds that there was further information that he wished to supply, in particular seeking a rehearing of the case in Shrewsbury.  

5	The Summary Reasons for the Decision were despatched on 8 September and they are at page 27 in the Appeal Tribunal bundle.  Briefly the Tribunal found that:

“3     In February 1999, the Applicant realised that the commission arrangements agreed at the outset had been changed and that the arrangements by which he would be paid were much less attractive to him.  He protested to the respondents, ……….but nothing was done to improve the commission arrangements.  The applicant continued in the employment of the respondents until his dismissal in March 2000.”  

The Tribunal’s further findings are at paragraph 4:
“4.     We find that although the applicant protested about the new arrangements on occasions during the period between February 1999 and March 2000, his remaining in employment under the terms introduced in February 2000 amounted to affirmation of the contract of employment as varied in February.  We are satisfied that he has received commission due to him under the terms of the February arrangement and that there remains nothing further to him.  His application is, therefore, dismissed.”

6	On 12 September 2000 the Employment Tribunal replied to the Applicant’s letter of 1 September 2000 which was treated as an application for a review.  The Tribunal in its letter of 12 September said:
“The application for review is refused as it does not stand any reasonable chance of success.  The evidence the Applicant now proposes to address was available at the time of the hearing or alternatively its existence could reasonably have been known of or foreseen at that time.”

7	The Applicant had also written a letter on 9 September which is in fact identical to the letter that he wrote on 1 September and no new point arises as a result of the letter written by the Applicant on 9 September.  

8	There then followed certain correspondence between the Applicant and the Employment Tribunals which culminated in a letter from the Regional Chairman in Southampton which is dated 31 October 2000.  That letter refers in particular to a letter written by Mr Bostock on 26 October 2000 in which he says that he would like to
“  “ 1.  Have the first case reheard in Shrewsbury.
       2.  Have the first case reheard in Southampton.
       3. Have the new case heard in Shrewsbury.”    ”

That is as the Chairman puts it in that letter.  
The Chairman goes on:
“I find it somewhat confusing as to exactly what you do require, since I am only aware of one application, that is no 3102530/00, which you presented at the Southampton Tribunal on 13 June 2000.
This case has already been heard and a decision was given on 1 September 2000.
You sought a review of that decision and the Chairman, Mr Twiss, refused the review for the reasons set out in his letter dated 12 September 2000.  
If you are dissatisfied with either the original decision or the review decision, it is open to you to appeal to the Employment Appeal Tribunal on a matter of law.  I would draw your attention to the notes which accompanied the decision to guide you as to how to make an appeal. 
Unfortunately, you must appreciate that this Tribunal, being an impartial judicial body, cannot give advice.
If you require advice, you must seek such [further] advice from either a solicitor, Citizens Advice Bureau, or other advice agency.”

9	The Applicant in the present case does not contest that he did receive the notes to which the learned Chairman refers but he submits, strongly, that he had been in regular contact with the various Employment Tribunals at all stages of the proceedings and would have expected someone on behalf of the Tribunals to indicate to him what procedure he should follow.  

10	At all events on 15 November 2000, the Applicant lodged a Notice of Appeal with this Tribunal, the Employment Appeal Tribunal, which stated as the main ground of appeal, at paragraph 6:
“6.  The tribunal said I should have left when the commission system changed.  I could not leave as it would have cost me £6500.”

11	By a letter dated 24 November 2000, the Employment Appeal Tribunal wrote to the Applicant pointing out that for the appeal to proceed, there must be a copy of the Extended Written Reasons of the Employment Tribunal, in accordance with the requirements of Rule 3(1) of the Employment Appeal Rules 1993, making reference to the case of William Hill Organisation v A Gravas [1988].  

12	Following contact with the EAT the Applicant had applied to the original Employment Tribunal for Extended Reasons by a letter of 27 October 2000 and that request was refused by a letter from the Employment Tribunal of 7 December 2000 on the basis that the request for written reasons was out of time and was refused for the following reason:
“When the decision was sent to the Applicant it was accompanied by a leaflet setting out clearly and in detail the time limit for applying for extended reasons.  The Applicant is a highly intelligent man and would have been well able to understand the document.  His application is now far out of date.  In all the circumstances I consider it right to refuse his application.”

13	There is then on 10 December 2000 a letter by the Applicant to the Employment Tribunal and finally on 27 December 2000 a letter to the Employment Appeal Tribunal which can be taken to be an appeal against the Chairman’s refusal to give Extended Reasons; it is, in effect, a second appeal against the original substantive Decision of the Employment Tribunal on 8 September.  

14	That letter of 27 December explains some of the contacts that the Applicant says he has had, with the various Employment Tribunals, the telephone calls that he had had, and the to-ing and fro-ing which he says has taken place.  

15	So, in those circumstances we treat ourselves first of all as being seized of an appeal against the Decision of the Chairman of the Employment Tribunal of 7 December 2000 refusing to give Extended Reasons for the original Decision of 8 September.  That Decision was made on the basis that the application was out of time, that the Applicant would have been able to understand the time limit of which he had been informed.  We can, unfortunately, detect no error of law in that Decision.  We say “unfortunately” from the point of view of the Applicant; so insofar as this appeal is an appeal against the Chairman’s refusal to give Extended Reasons, we have to dismiss that part of the appeal.  

16	The Applicant has, however, correctly pointed out to us that by virtue of the Employment Appeal Tribunal Practice Direction and which is reported in 1996 IRLR 430, under paragraph 2(2) :
“Where a request for extended written reasons has been refused by the Industrial Tribunal, an Appellant may appeal against that refusal and may also apply to the EAT to exercise its discretion to hear the appeal on summary reasons only.”

The result of that Practice Direction is that we do have power to hear this appeal on the basis of Summary Reasons only, but it is a discretionary power, and the question for us is whether we are prepared to exercise that discretion in order to hear the appeal on Summary Reasons only.  

17	In our view we should not exercise our discretion to hear this appeal on the grounds of Summary Reasons only.  In the first place, the original Notice of Appeal, which was received on 15 November 2000, is in itself out of time as regards the original Decision of the Employment Tribunal which was made on 8 September 2000.  The time limit for appealing is normally forty two days and if we apply that timetable, by analogy, to the circumstances of the present case, it is plain that the original appeal was out of time.  The second appeal lodged on 27 December 2000 is even further out of time.  

18	We have taken very fully into account the Applicant’s persistence and determination to pursue this matter as far as he can, but we have - as an appellate tribunal - to have regard to the system that is instituted by the Rules and we cannot make exceptions to the Rules, except if very strong reasons are given.  

19	In this particular case the Applicant did have available to him means of taking advice, either through the CAB or through a local solicitor, notably through the free legal aid advice scheme, through ACAS and through other agencies.  He had also received the notes telling him what the procedure was to follow, and although it is true that he was in contact with the Employment Tribunals in Southampton and elsewhere, the staff of those Tribunals are not there to give advice to members of the public; they are there to administer the Tribunal system.  

20	It is, in our view, not fair to the many litigants who do follow the rules, and do bring appeals within time, to make exceptions in a particular case unless there are very strong reasons for doing so.  We have been unable to detect any such reasons in this case; we are therefore not prepared to exercise our discretion to hear this appeal on the basis of Summary Reasons.  The result is that the appeal is dismissed.