The Notice of Appeal was considered by His Honour Judge Beard on 23 November 2024 and he permitted the appeal to go forward on all ground, stating: "I consider it arguable that the ET failed properly to consider the application for an extension of time. It is further arguable that, in the absence of an oral hearing, the respondent's contention that they had not received the ET1 could not be properly rejected."
CHRONOLOGY
The relevant chronology is as follows:
THE GROUNDS OF APPEAL
Ground 1
This first ground is predicated on the fact that Hypervolt never received the papers. As a matter of fact, this is incorrect. As stated above, by 12 June 2024 it will become apparent that it had. Mr Smith, therefore, indicated at the hearing that he no longer relied upon this ground and it was withdrawn.
Ground 2
The rejection of the application did not indicate that the ET had considered the entirety of the application before it. There were two grounds that were raised by Hypervolt: a reconsideration of the rule 21 decision and an application under rule 20 for an extension of time for presenting a response. Mr Smith relied upon the decision of T W White & Sons Ltd v White [2021] 3 WLUK 500. At [48] and [49] of his judgment, HHJ Tayler said as follows:
'RECONSIDERATION OF JUDGMENTS
Mr Smith submitted that the judge must first consider whether there are "no reasonable prospects of original decision being varied or revoked." However, here, the ET refused the reconsideration application, only taking into account the timing of the application. The ET failed to take into account the mandatory first stage of the reconsideration test as it did not consider whether the application had no reasonable prospect of success or not.
In oral submissions he developed this further by stating that the REJ failed to refer to or address the various points made in his application letter dated 12 June 2024, to which I have referred above. Furthermore, he submitted REJ Burgher failed to give full consideration to the second stage by only taking into account the timing of the application.
Mr Smith also replied upon the decision of Mummery J sitting with two members in Kwik Save Stores v Swain & Others 1997 ICR 49. In that case guidance was given as to how the judicial discretion in respect of whether or not to extend time should be exercised. I cite the following passage:
In his direction on 2 July 2024, REJ Burgher simply considered the timing of the application. Mr Smith submitted that the ET, therefore, erred in law in not taking into account all of relevant factors necessary for granting an extension of time as set out in the original application dated 25 April 2024 and the further letter of 12 June 2024.
Mr Jackson's submissions .
In addition to the helpful written submissions which I will not set out at length here, in essence Mr Jackson submitted that had it was very clear that the REJ was a very experienced judge and that he considered all the matters raised on behalf of Hypervolt and the decision was one that he was entitled to reach. Hypervolt had declined to participate in the proceedings, had delayed unjustifiably and, therefore, caused him substantial prejudice and distress.
DISCUSSION AND CONCLUSION
On the face of the extremely short decision dismissing the application, I have reached the conclusion that it is not clear that the REJ had properly considered all the matters raised on behalf of Hypervolt in accordance with the Kwik Save case or applied the approach laid down by HHJ Tayler in the White decision . It may well be that he had, but that is not apparent on the face of the decision. The statement that it was not in the interests of justice to extend time is a conclusion, with no underlying reasons being given for that conclusion. I, therefore, allow this ground of appeal.
Ground 3
This ground raises similar considerations on the basis that it was not what has been described as "Meek" compliant. This refers to the case of Meek v City of Birmingham District Council [1987] IRLR 250 . There, the Court of Appeal considered the obligation of an employment tribunal (then an industrial tribunal) to give reasons for its decision. Bingham LJ (as he then was) giving the judgment of the court at [8] said as follows:
The question of what standard must be met by the reasons for refusal of consideration was considered in Modha v Babcocks Airport Ltd UKEAT/0060/19, a decision of Elisabeth Laing J (as she then was). In that judgment, at [52], she indicated "...the refusal of the application for reconsideration was a judgment..." Rule 62 of the ET Regulations 2013 therefore applies. That provides:
I need not add the final part which has no application here.
Alternatively, Mr Smith submitted that under rule 62(4) of the Employment Tribunal's Regulations 2013: "The reasons given for any decision shall be proportionate to the significance of the issue and for decisions other than judgments may be very short." This applied even where there was not a "judgment".
Mr Smith submitted that the Meek principle meant that the essential requirement for any given decision should be sufficient to enable the reader to understand why that decision has been taken and what is the basis on which he has lost. Where a reconsideration application is refused on preliminary consideration, the reasons need to convey why the judge has formed the view that he has that there is "no reasonable prospect" of that application leading to the decision in question being changed. He, therefore, submitted that it followed that the REJ's decision did not address the reasonable prospects test or the point that had been raised; it was, therefore, not "Meek" compliant; that this applied even if the reconsideration was not considered to be a judgment. They were not proportionate to address the significance of the issues that had been raised.
Mr Jackson submitted that the decision did not need to be long, and set out that it was not in the interests of justice to grant an extension and that nothing further was needed. It was a perfectly reasonable decision that the REJ was entitled to reach.
DISCUSSION AND CONCLUSION
I have reached the conclusion, based upon my earlier reasoning in relation to ground 2, that there is insufficient reasoning in the decision and the points raised by Peninsula should have been addressed. I, therefore, also allow this ground of appeal.
Ground 4
It follows from my conclusions above that ground 4 must also be allowed, at least until the application has been reconsidered.
REMEDY
In his skeleton argument, Mr Smith submitted that the matter should be remitted to a different employment judge to be reconsidered. I disagree. Indeed, in the course of the hearing, he accepted that there was no reason why this matter should not go back to the REJ Burgher.
I, therefore, order that this matter be remitted to REJ Burghter to reconsider Hypervolt's applications and for him to set out his reasons and findings in relation to the matters raised in accordance with the relevant ET Rules of Procedure and the authorities referred to above. I make clear it is not simply a request for him to expand his earlier decision, but for him to reconsider the matter afresh.
That concludes this judgment.