Appeal No.	 EAT/542/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 December 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS P TURNER OBE
MR K M YOUNG CBE

MISS M CONIBERE	APPELLANT

UNITED BRISTOL HEALTHCARE NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	MR JUSTICE MORISON (PRESIDENT):     The first question which arises on this appeal is whether the time for appealing against the tribunal’s refusal to give extended reasons should itself be extended.

	The Notice of Appeal in this case we are treating as contained in the letter of 4th April 1997 which was received by us around that time. 

	The decision of the Industrial Tribunal appealed against was sent to the parties on 19th July 1996 in extended reason form. It follows therefore that there is substantial period of time beyond the 42 day period which is allowed for appeals against tribunal decisions.

	We have power to extend time in limited circumstances only in accordance with the guideline decision in Abdelghafar. It seems to us that on the peculiar facts of this case, that the interests of justice require that we exercise our discretion and we do so for the following reasons.

	The appellant, Miss Conibere, was pregnant with her third child and was having great difficulties from a medical point of view which required professional supervision on a daily basis throughout the pregnancy. She required the drug Heparin to be injected twice a day at the hospital under the consultant in order to keep her blood thin and presumably to avoid the risk of toxaemia.

	On 1st January, in the early hours of 1997, she lost her baby at 24 weeks which was a traumatic experience for her. We have no difficulty in accepting that she was incapacitated in the full sense from looking after her affairs from that date until towards the end of March when she was in receipt of incapacity benefit. 

	It follows, therefore, that throughout, effectively, the whole of the relevant period, or the greater part of it, it can be seen that Miss Conibere was disabled from complying with our 42 day time limit. It would be contrary to justice in those circumstances to deny her the opportunity of coming by way of an appeal.

	But the position is unsatisfactory as will be apparent to everybody, because the question at issue in the appeal as it stands at the moment, will be whether the Industrial Tribunal Chairman exercised his discretion properly in refusing to give extended reasons for a decision which was sent in summary reason form to the parties of 31st May 1996. This matter will have to be considered at a full hearing, because we take the view that it is arguable that the Chairman has exercised his discretion wrongly for two reasons. Firstly, having regard to the fact that the application for extended reasons was itself made only a relatively short period of time outside the 21 day time limit; and secondly, on the grounds that the learned Chairman is treating the requirement for extended reasons as a step in the appellate process and was therefore aware that by refusing to give extended reasons he effectively was denying Miss Conibere an appeal. But those will have to be considered at a full hearing of an appeal. If the outcome of that were that the court was of the view that the Chairman had exercised his discretion wrongly, then the Chairman would be in a position of having to provide us with extended reasons. That would be a task which he would be being invited to undertake some two years, probably, after the date of the original decision. On any view, that is an unsatisfactory course. Then even if he were prepared to and did provide extended reasons, there is then a question as to whether there is any error of law disclosed in the approach of the Industrial Tribunal to the case itself. That is something which would depend upon the nature of the decision and the reasoning process which led to it as disclosed by the decision in extended reason form. That would itself, no doubt, lead to a further appeal and a requirement that we have a preliminary hearing to examine whether it is an appeal which raises an arguable point of law, and if it does, a full hearing on that appeal. One can contemplate that this litigation has the potentiality for extending over a great period of time. 

	We want to make it perfectly clear, therefore, that we do not, by allowing this appeal to be lodged and by allowing the matter to proceed to a full hearing, wish to indicate to Miss Conibere that there is light at the end of the tunnel or that she is likely to succeed ultimately in her appeal. We cannot say, because we, like her, do not know what the terms of the decision of the Industrial Tribunal were and why she lost and we are not offering her any comfort by taking the course which we have .

	For these reasons we will allow this matter to go for a full hearing on the question as to whether the Chairman was right to have refused to give extended reasons. That matter will have to be argued. It is an important question in the way in which tribunals should approach the exercise of their discretion and its impact on the appellate rights to this court. We shall be grateful for any assistance that we can be given. I say that because I am aware of the fact that there is a person on behalf of the United Bristol Healthcare NHS Trust present, and they will appreciate that this court will be greatly indebted for legal assistance which their Counsel can provide on this difficult issue, and if Miss Conibere was able to obtain any kind of representation, that would also be of advantage to us. But of course, we always welcome and treat with courtesy those who are unrepresented and who wish to run their appeals in an unrepresented capacity. 

	I am emphasising that it is an important case and I shall retain it to myself as President. It should obviously be heard as soon as possible. It is obviously right that the Hospital Trust should be given the opportunity of considering their position and instructing Counsel and so forth. It will be listed in the normal way, with co-operation between the parties.