Appeal No.	 EAT/92/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 September 1999

Before
HIS HONOUR JUDGE J HICKS QC
MR A E R MANNERS
MR S M SPRINGER MBE

MR O O AKINBILE	APPELLANT

SOUTH LONDON FAMILY HOUSING ASSOCIATION	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MS H GOWER
(of Counsel)
Messrs Trowers & Hamlin
Solicitors
Instructed By:
Mr W Downing
Sceptre Court
40 Tower Hill
London EC3N 4BN	

	JUDGE J HICKS QC:	The Appellant was employed as a Primary Nurse by the Respondent, South London Family Housing Association, and was dismissed in circumstances which are not relevant for the purposes of the appeal before us.  He brought a complaint of unfair dismissal and that complaint was dismissed by the Employment Tribunal.

1	The subsequent procedural history is set out in the judgment delivered by His Honour Judge Peter Clark at the preliminary hearing of this appeal and is to be understood as repeated in this judgment.  I shall not occupy time by reciting it again.

2	The question before us is whether the Chairman of the Tribunal was wrong in law in refusing Mr Akinbile’s application for Extended Reasons for the decision of the Tribunal on the substantive hearing.  On the face of the decision letter, two reasons are given.  The first is simply that the application is out of time and the second is expressed as follows:

“The Chairman considers that the Summary Reasons adequately explain the grounds for the decision of the Tribunal.”

3	The first reason was, as is common ground before us, literally true.  The Summary Reasons were promulgated on 15 October.  Twenty-one days is the time allowed under the rules for an application for Extended Reasons.  That would have expired on 5 November, and 12 November was a week late.  In fact Mr Akinbile did not receive the Reasons, through his Solicitors, until 21 October and he was only 22 days after that in making his application.  That is not, of course, relevant to the question whether he was out of time but it is, in our judgment, by no means immaterial when considering the question whether time should be extended.  On any view the delay over the time allowed by the rules was short.

4	What the Chairman does not do is deal with the question whether there should have been an extension of time allowed and the application granted on that basis.  Ms Gower says, and it is perfectly true, that in his application for Extended Reasons Mr Akinbile did not in terms apply for an extension of time.  That, he tells us, was because he had not been advised and did not realise that that was necessary, not having been advised by his lawyers that there was a right of appeal at all or how to pursue it and having been advised by the Law Centre, when he received the Summary Reasons, that the first step was to apply for Extended Reasons but, as he tells us, without any additional advice about the need to give an explanation of any delay in applying for them.

5	Ms Gower submits that by contrast to certain other situations, where an application out of time is by the rules themselves to be impliedly understood as containing an application for extension of time, there is no such provision here.  That is true, but it seems to us that in common sense and in practice, when an Applicant in person makes such an application as this for Extended Reasons out of time, it would be in accordance with normal and, indeed, fair procedure either to treat it as an application for an extension, if material appears on which such an application can be dealt with, or to ask him whether and on what grounds he applies for an extension.  That was not done here and that in itself is, in our view, possibly an error of law - the failure to deal with what must have been understood to be the implication of an application for an extension of time.

6	However, we do not rest our decision solely on that ground, because there is also the second sentence given, on the face of it, as an alternative or additional reason, that the Summary Reasons adequately explain the grounds for the decision of the Tribunal.  Ms Gower rightly and very fairly accepts that that cannot possibly be defended.  The Summary Reasons are not adequate to serve as the Extended Reasons required by the rules in the case of an appeal.  She submits that that is mere surplusage - that the other ground already given by the Chairman is a proper and adequate ground for refusing the request in itself and this additional erroneous sentence should be ignored, but in our view it should not be ignored.  It is, on the face of it, plainly one of the reasons why the Chairman refused the request.  There would have been no point in adding it unless the Chairman, for whatever reason (and the reasoning may not have been fully articulated in her own mind) thought that it added to and supported the ground already given, and the fact that it cannot itself be defended casts serious doubt in our view on the validity of the first reason and, taken with the latter’s own difficulties already discussed, amounts to a failure to address the issues which should have been taken into account and addressed in dealing with this application.

7	For those reasons we have come to the conclusion that the Chairman did err in law and that the appeal must be allowed.  

8	The question then arises whether we should remit the application so that the same, or a different Chairman, or indeed a full Employment Tribunal, should deal with the application for an extension of time and hear what Mr Akinbile has to say by way of explanation of the delay.  We have come to the conclusion that that would impose unnecessary and burdensome extra delay and costs in this case and that we should exercise the jurisdiction which, as Ms Gower accepts, we have to deal with the matter ourselves and to exercise our own discretion, because it is a discretionary power, and decide whether the time should be extended.  

9	Mr Akinbile’s reasons for delay and the extent of the delay have already been covered in the account I have already given, when read in conjunction with Judge Peter Clark’s judgment, and taking into account all those matters and questions of prejudice and fairness we have come to the conclusion that we should exercise our discretion in favour of extending the time to the date when the application was actually made, thereby validating the application for Extended Reasons.  Plainly, since the Summary Reasons, as is common ground now, were not adequate, there could be no other reason for refusing the application and we therefore direct that Extended Reasons be given.