The applicant was dismissed from Tesco because of his poor attendance. The dismissal was held to be fair at a Tribunal hearing, and an extempore judgment was given. A short written judgment was subsequently sent to both parties, but no written reasons were produced by the Tribunal, nor were such reasons requested by either party. The applicant then appealed against the judgment of the ET, but failed to submit written reasons with his notice of appeal, so asked the Tribunal to provide them after the appeal tribunal told him they were a requirement. That request was refused as being out of time. The EAT, however, made an order under regulation 30(3)(b) and directed that the ET provide written reasons. Unfortunately, the Tribunal was unable to fulfil this request because the tape recording of the oral judgment had been lost; however they managed to obtain brief notes from the respondent’s solicitors and the EAT revoked the order. The EAT dismissed the appeal on the ground that there was no dispute as to the applicable Tesco policy on attendance, or that the applicant was in breach of the standards of attendance required under it. Thus, despite the fact there were no written reasons, the applicant’s poor attendance record justified his dismissal. A review of the judgment was rejected on the basis that the applicant’s assertion that his absence record was the result of harassment and bullying had not been brought to the attention of the respondent. The applicant now appeals, out of time, to the Court of Appeal against the review application.

The Court of Appeal held that there was no error of approach in the way the appeal tribunal disposed of the applicant’s appeal, and although the applicant had emphasised that he thought the tribunal had not fairly considered his case or have regard to matters which he says it ought to have had regard to, he did not persuade the court of any error of approach by the employment tribunal. Permission to extend time refused, and permission to appeal refused also.

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Case No: A2/2010/0703 and A3/2010/1096

Neutral Citation Number: [2010] EWCA Civ 1069

IN THE COURT OF APPEAL ( CIVIL DIVISION )

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

Mr Justice Underhill (sitting alone)

UKEAT/0142/09/SM

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday 8th September 2010

Before:

LORD JUSTICE RIMER

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Between:

SHANE SPENCER HUNT (Applicant)

- and -

TESCO STORES LIMITED (Respondent)

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( DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court )

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The Applicant appeared in person.

The Respondent did not appear and was not represented.

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Judgment

(As approved by the Court)

Crown Copyright ©

Lord Justice Rimer:

1. This application is by Shane Spencer Hunt, who appears in person in order to renew orally an application for permission to appeal following the refusal by Elias LJ on the papers on 3 June 2010 to grant him permission. Elias LJ was of the opinion that an appeal would have no realistic prospect of success.

1. The Appellant's Notice, prepared by Mr Hunt, is a somewhat confused document that appears on its face to be seeking permission to appeal to this court against (i) a judgment of the Bury St Edmunds employment tribunal dated 5 August 2008 and (ii) a decision described as dated 13 October 2009 (in fact it was dated 12 October 2009) in the nature of a refusal by the Employment Appeal Tribunal to review its earlier dismissal on 9 June 2009 of Mr Hunt's appeal against the judgment of the employment tribunal.

1. As I have explained to Mr Hunt this afternoon in the course of his submissions, no appeal lies to the Court of Appeal against the decision of an employment tribunal. Appeals from employment tribunals lie to the Employment Appeal Tribunal and Mr Hunt pursued such an appeal. He was in principle entitled to present an appeal to this court against the decision dated 12 October 2009 of the appeal tribunal on the review application, but if he was going to do that he had to present it within 21 days, which he did not do. His Appellant's Notice is dated 10 January 2010 and so is something over nine weeks late.

1. Mr Hunt appears to have recognised that error on his part by ticking section 8 of the Appellant's Notice so as to indicate that he was applying for an extension of time. He did not, however, furnish any reasons why any extension should be granted, either in his Appellant's Notice or elsewhere, and such reasons have really only been advanced orally this afternoon, being to the effect that, putting it shortly, he did not really appreciate the time limits. That is not a sufficient reason. Litigants who chose, or find themselves compelled, to conduct their cases in person have to adhere to the rules in the same way as those who are professionally represented, and it is not in principle a good answer to plead ignorance of the rules. But if there is a compelling case for permission on the merits this court may perhaps be sympathetic towards extending time for an appeal. I must therefore consider whether there is a sufficient case justifying the giving of permission.

1. The history of the case is as follows. Mr Hunt is a former employee of the respondent, Tesco Stores Limited. He began work for Tesco on 2 September 2005 as a general assistant and was, or became, employed at Tesco's Beccles store. He was dismissed on 29 January 2008. He presented a claim to the employment tribunal for unfair dismissal, although precisely when he did so is unknown to me since the bundle before the court does not, as it should have done, include a copy of his form ET1. It does however, as it should have done, include Tesco's form ET3, which is Tesco's response dated 20 May 2009 to his application, which describes his dismissal as having been for "incapability under [its] SYA [Supporting Your Attendance] policy" and, in paragraph 11, as being "more specifically under the Short Term Persistent Absence section".

1. Paragraph 7 asserted that Mr Hunt was absent nine times over a period of 68 days in 2007 and that when he returned to work on 17 January 2008 his absence percentage over the previous 26 weeks was 52.4%. It asserted that he was given verbal warnings on 26 June and 12 July 2007 and written warnings on 16 August and 11 September 2007, the latter being a final one due to expire on 11 March 2008 against which Mr Hunt appealed but without success. The ET3 asserted in paragraph 12 that Mr Hunt also appealed against his dismissal, but it was upheld at a hearing on 23 February 2008. It asserts, in paragraph 13, that on 29 February 2008 he also appealed under what is known as the "second-stage" appeal process and the hearing of that appeal took place on 13 May 2008. Tesco's case was and is that Mr Hunt was dismissed fairly.

1. I have been provided with notes of the appeal hearing on 23 February 2008, which record that Mr Hunt had decided that he did not wish to be accompanied by a representative. They record that he felt he had been bullied and victimised by Tesco. They record that it was pointed out to him that he had been absent from work for more than half of the last 26 weeks. I also have notes of the hearing on 13 May 2008, which again record that he twice affirmed that he did not want a representative. They record that he was dismissed "for 54 per cent absence" and not because he was ill and that he understood that. They repeated that he was dismissed "for unacceptable levels of attendance, not because you were ill" and recorded that he said that "I understand your point". But he also made the point that Tesco also had to look at why people were off. They recorded that he felt that the way he had been treated was disgusting and that he considered that he:

"…was dismissed because of rumours regarding me and my partner, people were saying things, gossiping behind my back I have done nothing wrong…"

1. The dismissal decision was upheld, as was formally confirmed to Mr Hunt by a letter of 20 May 2008 from Tony Cooper, the store director who had conducted the hearing. It explained that his reasoning for upholding the decision was as follows:

"I believe that the store supported you fully throughout your absence with reduced hours and transferring to another store.

You were given the correct level of warning throughout the process, although your verbal warning had expired when you were dismissed, your final warning was still live.

Your absence was over 50% at the time of dismissal and you had 13 periods of absence while working for Tesco, although 2 of these are mitigating.

In conclusion I uphold the decision to dismiss you from the company for unacceptable levels of attendance."

1. Mr Hunt's subsequent unfair dismissal claim came on for hearing before the employment tribunal (Employment Judge Cole, Mr A J Pearson and Mrs B Thurston) on 29 July 2008. I derive from the appeal tribunal's June 2009 judgment, but have nothing else on which to base it, that Mr Hunt attributed his absence "partly to domestic problems but primarily to a series of somewhat specific health problems" and that his unfair dismissal claim asserted that he had been genuinely ill and that it was unreasonable to dismiss him in such circumstances. He represented himself before the employment tribunal and Ms Walsh, a solicitor, represented Tesco. At the conclusion of the hearing, Employment Judge Cole gave an oral extempore judgment explaining the tribunal's reasons for concluding that Mr Hunt's dismissal was fair and that it followed that his claim for unfair dismissal must be dismissed. By their short written judgment subsequently sent to the parties on 5 August 2008, the tribunal said this:

"For the oral extempore reasons already given, we find that the Claimant was fairly dismissed by the Respondent. Accordingly, the claim before us is also dismissed but we take this opportunity to thank Mr Hunt for the very frank, honest and straightforward way in which he has given his evidence. We are grateful to him and we hope he soon obtains new employment."

1. No written reasons were or have ever been produced by the tribunal, nor did it have to produce any written reasons unless either of the parties requested such reasons in accordance with regulation 30(5) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. No request in accordance with that sub-paragraph was made by either party.

1. Mr Hunt nevertheless chose to appeal against the employment tribunal's decision to the Employment Appeal Tribunal by a notice dated 19 August 2008. In the absence of any written reasons for the employment tribunal's decision, that might be regarded as having been an ambitious project although, as he is not a lawyer, Mr Hunt no doubt did not see it like that. His grounds of appeal were refreshingly succinct and were as follows :

"All the evidence had not been looked at, and taken in consideration.

The reasons why I was off sick from work.

Had not looked at why I was dismissed straight away with no notice.

Had not looked at letters sent by Tesco which lied and said I turned down notice (I had waived the right to notice).

Had not taken into account past events that lead to my dismissal.

Was not happy with the response to the reason Mr Colin Rigby gave as to why I was not doing enough to get back to work."

1. I infer that, following the presentation of the notice of appeal, the appeal tribunal drew Mr Hunt's attention to the fact that his Notice of Appeal was not, as it should have been, accompanied by the tribunal's written reasons and so he promptly asked the tribunal to provide written reasons. That request was, however, out of time (see again Regulation 30 (5)) and on 4 September 2008 it was refused, the employment tribunal explaining that the employment judge considered that it would not be just and equitable to extend time under that regulation. Mr Hunt has made no appeal against that decision.

1. On 26 November 2008 Mr Hunt's notice of appeal against the substantive decision of the employment tribunal came before His Honour Judge Burke QC on the sift procedure. That is the procedure under which a judge of the appeal tribunal considers the case on the papers and gives directions in relation to the proposed appeal. Judge Burke gave directions staying the appeal pending provision by the employment tribunal of written reasons for its judgment, which he directed the tribunal to provide. His order was made under regulation 30(3)(b) of the regulations to which I have referred.

1. The outcome of that direction was the unfortunate disclosure that the tape recording of Employment Judge Cole's oral judgment delivered on 29 July 2008 had been irretrievably lost and that without it Judge Cole felt unable to provide written reasons. On learning of that, Underhill J, the President of the appeal tribunal, asked Tesco's solicitors to provide Judge Cole with any note they had made of his oral reasons in case that might assist him to produce written reasons. The note that the solicitors had made was produced, but it is probably an understatement to say that it is a very abbreviated one and Judge Cole did not regard it as enabling him to produce the written reasons that had been requested: by then several months had elapsed since he had heard the case and given his original oral reasons. The note produced by the solicitors, which Judge Cole rightly described as a mere précis, has been transcribed and occupies but a few lines reading as follows:

"Mr Hunt -- very honest

Balance of probabilities -- Respondent had fair reason for dismissal

Capability - no doubt - very poor

Bullying and harassment set aside - not raised at the time therefore irrelevant

No doubt absences correct - not doubted by anyone including the Respondent

Time for every employer decide % too high and there was a final warning

Not much criticism of Respondent Only possible criticism the last two absences considerable duration – moved from one day, two day to long term absence -- may be an underlying cause, should have insisted seeing company doctor.

Fair dismissal -- no choice to find a fair dismissal."

1. On 9 June 2009 Mr Hunt's appeal came before the appeal tribunal for a preliminary hearing. The panel comprised Underhill J, Mr D Evans and Mr I Ezekiel. Mr Hunt was not present but Tesco was represented by counsel, Mr Damian Brown, instructed by Hammonds LLP, solicitors.

1. The tribunal's judgment of the same day explained that the preliminary hearing was directed "because of the unfortunate problem which has arisen about the availability of written reasons for the Tribunal's decision". It also explained that the start of the hearing was delayed whilst the tribunal attempted unsuccessfully to contact Mr Hunt. It explained that Ms Karon Monaghan QC had been sent the papers in the case on behalf of Mr Hunt under the ELAAS scheme, but the form that had been sent to him had not been returned. ELAAS nevertheless decided that it should remain involved in Mr Hunt's interests and Ms Monaghan had prepared a skeleton argument in support of the appeal. Understandably, however, she felt that she ought not to lodge it without first being able to discuss it with Mr Hunt, which she had not been able to do. The appeal tribunal was sympathetic to Ms Monaghan's problem but decided to resolve it by the pragmatic course of taking account of her skeleton argument to the extent that it helped Mr Hunt's case but ignoring anything in it that might be regarded as prejudicial to his case, on the basis that it was being advanced without instructions.

1. The judgment further explained, however, that when the appeal tribunal retired to consider the decision, it managed to unearth another telephone number for Mr Hunt, which enabled contact to be made with him. In that conversation, he explained, as the judgment records, that he had moved from his previous address and that his address in his Notice of Appeal was no longer his current address but that he had not notified the appeal tribunal of this. As a result, he did not receive notice of the preliminary hearing. The tribunal's judgment recorded that, having considered whether to adjourn the hearing in the light of that conversation, it decided not to do so as it had heard argument and had reached a provisional view. An adjournment would be prejudicial to Tesco and would be wasteful of costs. The appeal tribunal pointed out that Mr Hunt, if he was minded to do so, could apply for a review of its decision under rule 33 of the Employment Appeal Tribunal Rules 1993 and, if he did so, any such application could then be considered on its merits.

1. Having dealt with the procedural background in that way, the appeal tribunal summarised the background facts, reflecting what I have summarised myself, summarised the outcome of the employment tribunal hearing and the procedural history leading up to the appeal before it. It recorded Ms Monaghan's submission that the employment tribunal's decision had to be set aside because the tribunal had been properly required by Judge Burke to provide written reasons but had failed to do so; the submission was that it was an essential element of its decision that it should be sufficiently reasoned. The appeal tribunal was apparently impressed by that submission, but dealt with it by acceding to Mr Brown's application for Tesco for the revocation of Judge Burke's ex parte direction that written reasons be provided. The appeal tribunal's conclusion was that this was a straightforward case in which the grounds of appeal had no real prospect of success. The solicitor's note of the employment tribunal's oral judgment showed that there was no dispute as to the applicable Tesco policy or that Mr Hunt was in breach of the standards of attendance required under it. On the face of it, his attendance record justified his dismissal on capability grounds and none of his grounds of appeal raised an arguable ground of appeal, for the reasons that the appeal tribunal explained in paragraph 16 of its judgment where it went through each of Mr Hunt's grounds in turn. The outcome was that it dismissed the appeal.

1. As was open to him, Mr Hunt did seek a review of their decision but it was refused on 12 October 2009. In his written reasons for refusing a review, Underhill J explained that he was in effect prepared to assume in favour of Mr Hunt that it was not his fault that he did not attend the preliminary hearing and so his absence on that occasion was not held against him. But he concluded that, even if he had attended it, it could have made no difference to the appeal tribunal's decision. He explained that Mr Hunt wished to argue that his absence record was itself the result of harassment and bullying and that Tesco should have taken this into account in deciding whether or not to dismiss him. But, said Underhill J, that argument plainly was taken into account by the employment tribunal but was rejected on the ground that the alleged bullying and harassment was never brought to Tesco's attention. Mr Hunt disputes that, as he has repeated before me, but Underhill J pointed out that the issue was one of fact and no basis had been suggested as to why it was not a finding open to the employment tribunal, faced as it was, so I understand, with conflicting evidence.

1. Against that somewhat unsatisfactory procedural background, Mr Hunt now seeks the permission of this court to appeal against the decision of the appeal tribunal, although formally speaking his proposed appeal is only against the order on his review application.

1. As I have said, his Appellant's Notice is seriously late and beyond the explanation which he proffered earlier this afternoon, there is no evidence as to why it is late or why time should be extended. Mr Hunt now attaches 11 grounds of appeal to his Appellant's Notice, which essentially build on the six grounds before the appeal tribunal and assert that various matters were not considered by the employment tribunal that should have been.

1. In my judgment, quite apart from the lateness of the filing of the Appellant's Notice, Mr Hunt faces insuperable difficulties in establishing that he ought to be given permission to appeal. For obvious reasons - which I have endeavoured to explain to Mr Hunt and which I hope he understands - the absence of full written reasons from the employment tribunal puts him at a material disadvantage in demonstrating any error of law on the part of that tribunal. It is in principle difficult for him to make good a complaint about that tribunal's decision if he cannot point to reasons produced by the tribunal with a view to demonstrating where in those reasons they went wrong as a matter of law. I would expect even a non-lawyer such as Mr Hunt to recognise that the court cannot simply accept his assertion as to any alleged shortcomings in the tribunal's reasoning.

1. Moreover his various grounds of appeal do not of themselves make good any case that the employment tribunal fell into legal error. For the most part they do no more than raise factors that might be said to be material to the fairness or otherwise of the decision to dismiss him in the light of the extent of his breaches of Tesco's attendance policy. In the absence, however, of full written reasons it is impossible for him to demonstrate that the employment tribunal did not make a fair assessment of the fairness or otherwise of Tesco's dismissal decision. Mr Hunt re-raises the bullying point, which was plainly considered and rejected by the employment tribunal. He also raises the point that he was the subject of a vendetta, but as I cannot see that he raised this before the appeal tribunal I can see no reason why he should be entitled to raise it afresh before this court.

1. As Elias LJ explained when dealing with the case on the papers, the appeal tribunal came to an apparently sound conclusion that it could fairly consider Mr Hunt's grounds of appeal on the basis of the notes of the employment tribunal's decision produced by Tesco's solicitors. Mr Hunt has himself produced nothing better, or even as good, and if he had asked for written reasons in accordance with Regulation 30(5), which he did not, I cannot see that the employment tribunal would have had any choice but to produce them. He does not seek before this court to raise any challenge to the correctness of the appeal tribunal's decision to revoke Judge Burke's direction for the production of reasons and so in one sense the absence of written reasons is something that can fairly be laid exclusively at Mr Hunt's door. Furthermore, as Elias LJ also explained, the essence of Mr Hunt's challenge to the employment tribunal's decision is based on a bid to re-open and re-argue factual matters. As is very well known to those familiar with employment law - although perhaps it is not so familiar to Mr Hunt - no appeal lies against an employment tribunal's findings of fact unless of course those findings are perverse or are arrived at without any supporting evidence, yet in substance what Mr Hunt is attempting to do is to challenge the employment tribunal's findings and to invite this court to assess afresh the proper outcome of the case by putting a different slant on the material which was before the employment tribunal. That is, with respect, an impossible endeavour and there is no question of this court engaging in any such exercise.

1. Like Elias LJ, I can see no error of approach in the way the appeal tribunal disposed of Mr Hunt's appeal, and although Mr Hunt has emphasised to me that he thinks that the tribunal did not fairly consider his case or have regard to matters which he says it ought to have had regard to, he has not persuaded me of any error of approach by the employment tribunal.

1. In my judgment, therefore, there is no substance to his proposed appeal to this court and an appeal would have no realistic prospect of success. In those circumstances I refuse to extend Mr Hunt's time for appealing and I also refuse him permission to appeal.

Order: Application refused.