MISS M FENTON v NEWHAM COMMUNITY HEALTH SERVICES NHS TRUST [2001] UKEAT 413_01_1709

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 413_01_1709

Case No Appeal No. EAT/413/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS M FENTONAPPELLANT

NEWHAM COMMUNITY HEALTH SERVICES NHS TRUSTRESPONDENT

Before

Mr Recorder Underhill

Date 17 September 2001

[1]APPEARANCES For the Appellant MR THOMAS KIBLING (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR RECORDER UNDERHILL QC This is not a straightforward situation. The Appellant's claim for unfair dismissal was dismissed by a Tribunal at Stratford on 15 January 2001. Summary Reasons were sent to the parties on 1 February 2001. The Appellant issued a Notice of Appeal on 22 February 2001. She was then informed by the Deputy Registrar of this Tribunal, by letter dated 8 March 2001, that an appeal could not proceed without Extended Reasons; reference was made to the decision in William Hill Organisation v A Gavas

[1990] IRLR 448

approved in the Court of Appeal, but apparently unreported.

[2]Having received that letter, the Appellant sought to obtain Extended Reasons. She wrote to the Tribunal on 12 March 2001 in the following terms:

"Could you please send me the full-extended written notes regarding the above case heard 15 January 2001? This I understand is needed for the appeal process. I would appreciate if you could forward this to me at the above address as soon as possible so as not to pass the 42-day deadline for the appeal."

On 21 March 2001, the Regional Secretary replied in the following terms:

"Thank you for your letter of 12 March 2001. I have noted its contents. A Chairman to whom this case has been referred has instructed me to write to you in the following terms. The Chairman who sat refuses your application because it is well out of time (see Rule 10(4) of the Employment Tribunals Rules of Procedure)."

[3]The Appellant has not formally appealed against that refusal. The Appellant has this morning, on this preliminary hearing, had the advantage of being represented by Mr Kibling, under the ELAAS scheme, who submitted that there were two possible routes available to her.

[4]First, she could pursue the substantive appeal on the basis of the Summary Reasons. Mr Kibling drew our attention to the decision in Wolesley Centers Ltd v Simmons

[1994] ICR 503

, which establishes that in an appropriate case an appeal can proceed on the basis of Summary Reasons, and that it will be a matter for the Tribunal in question to decide whether that is a proper course in the particular case.

[5]The second course open to the Appellant would be to appeal against the refusal of the Tribunal to give Extended Reasons. That route would of course be much more prolonged because there would have to be a consideration at a full hearing of this Tribunal as to whether or not the Employment Tribunal had erred in law in making the decision which it did. On the face of it, the appeal would face obvious difficulties, since no reasons had been put before the Chairman for extending the time limit; but we are told that it may be arguable on the facts that the Appellant did not receive the Notes of Guidance which make clear what procedure should be followed.

[6]In the event, following some discussion and our indicating that we were minded to allow the substantive appeal to proceed on the basis that it was arguable that Extended Reasons were unnecessary and that the case raised a real point of law, Mr Kibling, took instructions, and indicated that the Appellant does not wish to follow the second course. This appeal will therefore proceed to a full hearing. It must be understood that it will be for the Tribunal at that hearing to consider whether it is prepared to consider the appeal in the absence of full Reasons in accordance with the decision in Wolesley Centers : that is not something we can decide indefinitely now in the absence of the Respondent. Category C, two hours. Skeleton Arguments 14 days prior to the hearing. Note of Pre-Judgment Discussion Mr Kibling, our view is that it is at least arguable that the existing Summary Reasons could suffice and that if that were the case, there are arguable grounds of appeal, along the lines you have indicated, so I will not spend time summarising them now. If the appeal were to proceed on that basis alone, what would happen is this, as we understand it. The matter would come before the full Tribunal without Extended Reasons, and it would have to consider - because we cannot decide for it and can decide no more than that it is arguable - it would have to consider whether, in all the circumstances, the Summary Reasons were a sufficient basis for a decision. They would have to make the judgment that the Appeal Tribunal made in the Wolesley case, where it was obviously quite closely balanced there because it was only a majority, and on that basis, if that was the only basis on which we had allowed the matter to go forward, your client, Mrs Fenton, would have to, as it were, take her chance because they might say "we cannot really decide this on Summary Reasons, so therefore going back to the unreported case, William Hill v Gavas , the appeal cannot proceed". It would almost certainly - I have not quite thought out exactly how it would work - but for practical purposes it would then be too late to say "we would like another bite at the cherry if that is really your view; let us go back to the Employment Tribunal and ask for full Reasons after all". So, using pompous language, I think that Ms Fenton will have to take her election on that. But at least that would be a reasonably quick process, compared with the alternative, which is that you seek to persuade us now, to allow the appeal to proceed against the decision not to give Extended Reasons, because logically what would then happen is that that would then have to proceed to a full appeal - as I understand it, I do not think we can definitively decide that - and at that full appeal that question would then be determined. If the decision was to overrule what the Chairman had decided, there would be even further refinements - the decision might be to send it back to the Chairman to think about again, or it might be that this Tribunal would make the decision itself, but either way, there would be further steps before any Extended Reasons were obtained, and then the matter would have to come back and it would drag on for a very long time. I think also…………….that where a Tribunal provides no Reasons for its Decision, and there is a requirement to give Reasons for the Decision, simply that they refused it without reasons, then …to invite the Tribunal to give a reasoned decision as to why they refused, which would then maybe at the preliminary hearing - we are going one step even further back … You may be right about that, we have not thought about that, and there is some case law on that. I am not convinced that for a very short interlocutory reason like this, where the Applicant herself gave no reasons for her failure to apply within time, the Tribunal was really obliged to do any more than it did. A lady writes a single sentence saying "Please send me extended reasons" out of time, does not give any reason why she is out of time; I do not think the Chairman can be expected to do much more than say no. I can see the force of that …. So, whether or not you are right about that, it would be a very elaborate process, and I think what we want your assistance on, and you may want a moment or two to discuss this with Mrs Fenton, is whether she wants us even to consider that. I am not saying what we would do, but we have to think this out quite carefully, and I think it sensible to get some guidance from you. Does she want to go the long route, if the long route is available? Well, I need to take instructions on that. I would like to be able to explain both routes which are open to her, and the consequences of those. I would not have thought it would take me more than ten minutes, at the longest, if I had until quarter past, I could get instruction. If I have some difficulties, I could mention it to the clerks to inform you, but I would imagine that within ten minutes I could explain that to Mrs Fenton, and we can then …. She may form a view about what she wants to do with her appeal in any event as a result of that. Yes, quite, I think that would help us because I want a clear path forward. This could become a procedural morass unless we all thought out carefully the consequences of the decisions and reach a straightforward view on it. Can I just say one thing. We had some debate outside about what, with respect to you, the relevance of your decision based on Rule 39 of the Employment Appeal Tribunal Rules was. At present, unless I have missed something, I do not think you are invoking Rule 39. I do not see on what basis you should. If you want Extended Reasons, then what you are doing is appealing against the Decision of the Tribunal, and that you are in time to do that, at least on a benevolent reading of this …. Time does not start until …….. I am so sorry, I put that badly. If you are appealing the Decision of the Chairman to refuse Extended Reasons, I think your Notice of Appeal is in time, is it not? It is, because time never starts running, you are never out of time, because … Yes, but the refusal to give Extended Reasons - you had to put in a Notice of Appeal in forty two days … Yes, that is right sir, you are absolutely right. That refusal was made in writing on … I think we may have problems with the forty two days. Maybe the Notice of Appeal does not specify that - that might be your problem. Yes. But when you were referring us to Rule 39 what were you …… That was only in relation to the second argument. Yes, but in the first argument she is in time, isn't she? Either the time has not started to run at all or she is in time. So I do not actually think that this is a question for us exercising our discretion to extend time. Not on that……in relation to the other ground which is to do with the quality of the decision, in other words, validating the appeal, the substantive appeal because you can never appeal a decision unless you comply with Rule 3, unless you exercise Rule 39 that is my understanding of the reasoning - that seems to be the reasoning in the decision that the Wolesely What I need to take from Ms Fenton is some instructions Yes well I am afraid this is all taking time but it will be time well spent if we get a sensible way forward in this case.