Appeal No. EAT/0889/02

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 October 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR K EDMONDS JP
MISS D WHITTINGHAM

BOWLEY DATA SYSTEMS	APPELLANT

MR R GILL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR MICHAEL WHITEHEAD
Solicitor
Messrs Foot Anstey Sargent
4-6 Branfield Crescent
Exeter
EX1 1RF	

JUDGE J McMULLEN QC

1.	This is an appeal from a decision of an Exeter Tribunal, Mr Hollow, Chairman with Mr Foster and Mr McAuliffe on a preliminary question about the timely presentation of an Originating Application.  The issue relates to what is the effective date of termination for the purposes of the claim made by the Applicant of breach of contract and constructive dismissal.

2.	We consider that there is a point of law with a reasonable prospect of success on this substantive issue which is a matter of construction of section 97 of the Employment Rights Act 1996, and a number of authorities which the Tribunal considered in paragraph 12 of its reasons, for this to justify a full hearing.

3.	At the full hearing, one of four competing dates for the statutory term “effective date of termination” will need to be chosen.  The Tribunal decided that the Originating Application was presented on 8 March 2002.  It considered evidence given by the Applicant that that was a duplicate of an Originating Application which he had put through the letterbox at the Tribunal offices on 30 January 2002.  

4.	In its summary reasons promulgated on 12 June 2002 the Tribunal decided that the effective date of termination was 31 December 2001.  In other words, on the substantive point it found the latest date claimed by the Applicant.  It therefore went on to say:

“had it been necessary for us to do so, we would have found that the Applicant had presented an application by putting it through the letterbox of the Tribunal office at 17.45 hours on 30 January 2002.”  

5.	In its extended reasons, at paragraph 13 the Tribunal said this:

“We find that the effective date of termination was 31 December 2001 despite the actions of the parties.  We find that, having been presented on 8 March 2002, the Originating Application was presented in time.  Our finding to that effect renders it unnecessary for us to reach any factual conclusion as to whether or not the applicant had presented an Originating Application on 30 January 2002 as he said.”

6.	As Miss Grennan has pointed out, the Tribunal has failed to reach the same conclusion in its summary and extended reasons.  She recognises that if it were to reconsider this matter it is likely that the Tribunal will find against her client and that the Originating Application had been presented on 30 January 2002. 

7.	In order that the full hearing will have a menu of factual dates to choose from when deciding the legal point, and in order to avoid further adjournment, it seems to us that a sensible way forward would be to invite the Employment Tribunal to make a decision and give reasons in respect of what happened on 30 January 2002.  In its extended reasons it deals extensively with what happened on that day - see paragraph 3.  We have not heard full argument on this point, but it seems to us that our power to do this comes from what Nolan J said in the EAT in Yusuf v Aberplace Ltd [1984] ICR 850, 853F:

“… the procedure of calling upon an Industrial Tribunal to amplify findings and reasons which were incomplete or obscure is not often used because it is not often required but there is ample precedence for its use in decisions both of the Appeal Tribunal and of the National Industrial Relations Court [cites authorities]. Secondly, by virtue of the then procedure regulations the Industrial Tribunal must give the reasons for their decision. As has been made clear by the Court of Appeal in Union of Construction, Allied Trades and Technicians v Brain [1981] ICR 542, the purpose of giving reasons is “to tell the parties in broad terms why they lose, or as the case may be, win”. Unless and until reasons are given with sufficient clarity to fulfil that purpose there can be no question of the Industrial Tribunal being functus officio….”

The EAT went on to apply a judgment of Eveleigh LJ in Varndell v Kearney & Trecker Marwin [1983] ICR 683, 685, that remission to an Employment Tribunal in such a case is the “obvious course” to take.

8.	His Honour Judge Peter Clark sitting with Miss Chapman and Miss Jackson here in Donovan v New Islington and Hackney Housing Association, 10 March 1997 EAT/1269/95 applied that authority to require further elucidation by the Employment Tribunal in that case.  We are aware of the treatment of this procedure by a majority of the Court of Appeal recently in Tran v Greenwich Vietnam Communnity Project [2002] ICR 1101, but prefer to follow a later unanimous Court of Appeal judgment in English v Emery Reinbold [2002] 1 WLR 2409. In our view what the Tribunal has not done in this case is to give a decision on what was the primary plank of the Applicant’s case namely that he personally presented an Originating Application in January; and only when he realised the Tribunal had not got it, did he present a duplicate in March.  Therefore, it is the duty of the Tribunal to make a decision on that.  Its decision seems to us to be transparent in the light of its summary reasons and in order that the full option will be available for an instant decision by the full hearing of the Employment Appeal Tribunal we will direct that the Tribunal should give a decision and reasons in respect of the Applicant’s claim that he presented it on 30 January 2002.  Category C, time estimate of 2 hours.