Bowers & Anor v National Institute for Health and Clinical Excellence (Practice and Procedure)

Where oral reasons have been given, a party seeking written reasons after the prescribed period must apply for an extension and provide a proper explanation for the delay. The tribunal is not required to investigate whether an unarticulated extension is sought.

The discretion is exceptional and fact-sensitive. Relevant matters include the length and explanation of delay, the availability and adequacy of oral reasons, and prejudice. An appellate court may intervene only for an error of law, a failure to consider relevant matters, consideration of irrelevant matters, or a decision outside the generous ambit of reasonable discretion.

The claimants' claims for constructive unfair dismissal and, in one case, disability discrimination were dismissed after a nine-day Employment Tribunal hearing. Reasons were delivered orally. No timely request for written reasons was made after the short judgment was sent.

The Employment Judge later refused a late request for written reasons and a reconsideration application. On appeal, the principal issue was whether the Judge had failed to recognise, or had erred in exercising, the discretion under Rule 30 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 to extend time for requesting written reasons. A further alleged procedural error concerning a purported promise of written reasons was considered at the permission stage.

1. Appeal dismissed. The Employment Judge made no error of law in refusing to extend time for the late request for written reasons.
2. Although the refusal letters did not expressly refer to a discretion, read fairly and together they showed that the Judge recognised and exercised it. The Judge considered the lateness of the request, the absence of an explanation for the delay, the oral reasons given at dictation pace, the parties' representation, and the resulting balance of prejudice.
3. Under Rule 30, the ordinary position is that a party who has received oral reasons must request written reasons within 14 days. A party seeking departure from that position must make an application and justify it. In an adversarial system, the tribunal is entitled to expect that application and is not obliged to investigate what relief a party may wish to seek.
4. Applying Robertson v Bexley Community Centre [2003] IRLR 434, extensions are exceptional. The applicant bears the onus of providing a full and acceptable explanation. The Employment Appeal Tribunal cannot substitute its own view merely because it might have exercised the discretion differently.
5. The claimants had not provided a satisfactory explanation for failing to request reasons promptly after receiving the judgment and accompanying notice. The Judge was entitled to treat the period of delay as material and to find that oral reasons reduced any asserted prejudice. No positive proposed ground of appeal, requiring written reasons, had been identified.
6. The proposed further ground, based on an alleged promise to provide written reasons, disclosed no arguable error of law. Even if such a promise had been made, the subsequent judgment notice made the need for a written request and the applicable time limit clear. Permission for that ground was refused.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal's refusal to provide written reasons out of time.
• Employment Tribunal, Liverpool: dismissed the claimants' substantive claims and later refused their late request for written reasons and reconsideration application. No citation was stated.