Appeal No. EAT/878/92

	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 25 July 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR T C RAMSAY

	MR P M SMITH

BLUE ADMIRAL LIMITED	APPELLANTS

MR P J BRENNAN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	NO ATTENDANCE BY
OR REPRESENTATION
ON BEHALF OF THE
APPELLANTS

For the Respondent	THE RESPONDENT IN
 PERSON

		MR JUSTICE MUMMERY: (PRESIDENT)	This is an appeal by Blue Admiral Limited against the decision of the Industrial Tribunal held at Southampton on the 12 October 1992.  The Tribunal unanimously decided for reasons notified to the parties on the 20 October 1992 that the Applicant, Mr P J Brennan, had been unfairly dismissed.  The Tribunal awarded him a basic award of £594.  It did not make a compensatory award in his favour because the Tribunal considered, for the reasons set out in their decision, that there was a 100% chance that Mr Brennan would have been dismissed in any event.  It is relevant to note that the basis of the decision that Mr Brennan had been unfairly dismissed was that there was a failure to observe the rules of fairness in the procedure that was adopted.  

	The Respondents to the proceedings, Blue Admiral, were dissatisfied with that decision and they appealed by a Notice of Appeal which was received in this Tribunal on the 1 December 1992.  They complained that there were errors of law in the decision on unfair dismissal and on the decision to make a basic award in Mr Brennan's favour. 

	On the 7 December 1993 new Solicitors acting on behalf of Blue Admiral in place of their earlier Solicitors, wrote to the Tribunal saying that they had been instructed and that their client had decided not to proceed with the appeal.  After receiving that letter the Appeal Tribunal wrote to Mr Brennan asking whether he would consent to the withdrawal of the appeal.  Mr Brennan replied saying that he "cannot give his consent" as he had waited for over a year "for this to come up" and, if it takes longer, he could wait.  He said:

"As I feel it to my advantage to carry on this case so as to the best of my interest I can't give consent of withdrawal."

	The appeal therefore remained in the list for hearing.  Another letter has been sent by Blue Admiral's Solicitors to the Tribunal dated the 13 July 1994 saying that they were surprised to receive a Notice of Hearing because their clients had withdrawn their appeal by the letter of the 7 December.  They said that they understood that Mr Brennan objected to the appeal being withdrawn and that the hearing today had been arranged to give Mr Brennan an opportunity to state his objections.  They added that Blue Admiral had paid to Mr Brennan the award of £594 and interest of £62.84.  No question of legal costs arose because Mr Brennan had acted in person.  He had acted in person both before the Industrial Tribunal and on this appeal.

	In those circumstances Blue Admiral have not attended at the hearing today and have not been legally represented.  Mr Brennan has attended in person.  He has stated to us the reasons why he objects to this appeal now being dismissed.  The reasons are these.  He said that in his application to the Industrial Tribunal he had asked not only for compensation but also for reinstatement so that he could carry on working in his old job as a bus driver with Blue Admiral.  

	The decision of the Industrial Tribunal dealt with the question of compensation and basic award, but did not deal anywhere with the request for reinstatement.  Mr Brennan took this up with the Industrial Tribunal after he had been notified of the decision.  In a letter which was received by the Industrial Tribunal on the 2 November 1992 he said: 

"Will you please review your decision in the above case.

During the hearing and in the case summary no mention has been made on the question of re-engagement or reinstatement.  Will you please as a matter of urgency consider this position and advise me accordingly."

	The Chairman of the Tribunal, Mr Edwards, decided to treat that letter as an application for review of the earlier decision promulgated on the 20 October.  The Chairman dealt with the fact that the Tribunal had failed to ask Mr Brennan when it made the decision whether he wanted reinstatement, re-engagement or compensation.  The Tribunal should have done that under the provisions of Section 68(1) of the 1978 Employment Protection (Consolidation) Act.  

	The Chairman, however, refused the application for review on the basis that if the question of reinstatement had been considered, the Tribunal would not have considered it to be a practical option because of the finding that Mr Brennan had a 100% chance of being dismissed in any event, even if Blue Admiral had followed a correct procedure in dismissing him.

	The importance of that point is that Mr Brennan has informed us that he thought that, when Blue Admiral's appeal came on, he would then be given an opportunity of putting forward his arguments on reinstatement on appeal from the decision of the Chairman, who had refused to review the earlier decision.

	The difficulty with Mr Brennan's position on this is that he did not put in an appeal within the time limits allowed, that is 42 days from being notified of the decision of on review.  The decision on review was notified to Mr Brennan on the 4 November 1992.  No appeal was put in within 42 days of then or for a long time afterwards.  Nothing was said in the Respondent's answer by way of any cross appeal from the decision of the Industrial Tribunal.  

	Mr Brennan wished, however, to pursue the matter. He took it up with the Employment Appeal Tribunal who sent in forms on the 20 December 1993 along with the Practice Direction and notes for guidance issued by the Tribunal, as the office in the Appeal Tribunal understood that Mr Brennan wished to make an appeal out of time against the Industrial Tribunal's decision.  The letter stated that, if he wished to appeal, his appeal should be accompanied by an application for extension of time giving reasons for the delay.  

	Mr Brennan did pursue the appeal.  He made an application for an extension of time.  That application was refused by the Registrar on the 17 June 1994.  Mr Brennan then had five days in which to appeal against the refusal of the Registrar to extend the time (Rule 21(2) of the Employment Appeal Tribunal Rules 1993).  He did not appeal against that decision.  

	He has told us today that he does wish to appeal; first, against the decision of the Registrar refusing an extension of time and then, if that appeal is allowed, he wishes to pursue the appeal against the refusal of the Industrial Tribunal to order reinstatement, as well as the basic award.  We have explained to Mr Brennan that, if this is the course he wishes to pursue, then he must then first apply for leave out of time to appeal against the Registrar's decision.  If that is granted, he then has to persuade us on the appeal that the Registrar should have extended time.  If he persuades us on that and the appeal goes on to a full hearing, he would have to persuade the full Tribunal that the Industrial Tribunal made an error of law in refusing to order reinstatement.

	Mr Brennan says that he appreciates these points.  We have carefully considered the ramifications of what Mr Brennan wishes to do in the light of what prospects we think he has of succeeding.  We have decided that on this appeal we should take the following course of action.  First, we should dismiss the appeal by Blue Admiral, as they have made it clear in correspondence with the Tribunal that they no longer wish to proceed and want to withdraw it.  That appeal is therefore dismissed.  A cheque has been paid to Mr Brennan covering the basic award and the interest; he originally sent the cheque back, but it has been returned to him and he has now paid it into his account.  

	That leaves the question of what we should do with Mr Brennan's wish to appeal against the refusal of reinstatement.  In our view, the obstacles which he has to overcome in order to get anywhere with that appeal are so great that we shall not grant him the orders which he seeks.  He is out of time in seeking to appeal against the Registrar's order.  He is out of time in bringing the appeal.  Having considered all the papers, in particular the reasoning of the decision of the Industrial Tribunal, both on the original hearing and on the review, we are of the opinion that there is no error of law on which Mr Brennan could succeed.  The Tribunal made a conclusion of fact that he had a 100% chance of being dismissed. 

	In those circumstances the Tribunal was right in refusing, on the review, to order reinstatement.  There is no prospect of Mr Brennan succeeding on this appeal.  We shall not, therefore, grant him leave to appeal against the Registrar's order out of time.

	Mr Brennan has raised one final point.  The original decision has put upon him a stigma which has made it difficult for him to find other employment.  We would wish to point out to him that it is clear from the Industrial Tribunal decision that he won the case.  They concluded that he was unfairly dismissed because a fair procedure had not been followed. There should not be any stigma on him in his applications for fresh employment by reason of that decision.  We hope he is able to find fresh employment, we do not think, however, that there is any point in these proceedings being pursued any further.  The appeal is dismissed.  We do not give Mr Brennan leave to appeal out of time against the Registrar's order refusing an extension of time for appealing.