Demeshghi v Bank Melli Iran [1992] UKEAT 228_92_2207

EAT

Demeshghi v Bank Melli Iran

[1992] UKEAT 228_92_2207 · 1992-07-22

MR JUSTICE WOOD (PRESIDENT): This is an interlocutory appeal from an Order of the learned Registrar of the 15th April 1992 when he refused an extension of time for the filing of a Notice of Appeal in this Court.

By an Originating Application dated 4th September 1990 the Applicant, Ms Demeshghi alleged unfair dismissal, sexual harassment, sexual discrimination and racial discrimination against her employers, the Bank Melli Iran.

Some preliminary matters were heard over a period of four days by an Industrial Tribunal sitting at London (North) under the Chairmanship of Mr Walker. The last of those four days of hearing was the 2nd December 1991 and the decision of the Tribunal fell under a number of heads. First, that the Azeris were an ethnic group within the Race Relations Act. Secondly, that there was no direct or indirect discrimination against the Applicant in respect of her wearing a headscarf on the premises of the Bank. Thirdly, that it was not just and equitable to extend time for bringing of her claim of sexual harassment. Lastly, an Order as to costs.

The decision is in front of me and the reasoning is clearly and succinctly set out. The grounds upon which the Applicant now wishes to appeal are threefold, first of all that the Tribunal should not have decided that the wearing of a scarf was not direct or indirect discrimination after listening to the opinion of two experts, as there was no evidence of the circumstances in which scarfs were worn within the Bank. Secondly, that the decision not to extend time was not one to which, in the exercise of its discretion, the Tribunal could properly reach. Lastly, on the issue of costs. Looking at the decision it is quite plain, first of all that there was an agreement, common ground, and I read from paragraph 3 of the decision:

"the parties agreed the following: `The Applicant, in order to be reasonable and to save costs, agreed that the issue of the head scarf as set out on page 50 of the agreed bundle of documents shall be determined by this Tribunal and both parties agree that this Tribunal's findings on that issue shall be binding upon both of them.'"

So that it seems to me that that is really the end of the matter so far as the complaint that they should not have dealt with the wearing of the scarf and whether it was direct or indirect discrimination at that hearing. Thus, looking at the decision the majority found that sexual harassment took place in June 1987, the Originating Application was therefore, well out of time and it was a unanimous decision of the Tribunal that it was not just and equitable to extend the time under s.76. There is no detailed submission that they could not have reached that conclusion in the exercise of their discretion and it seems to me that that ground of appeal is most unlikely to succeed. So that the first two grounds seems to me to be, at this juncture and without hearing full argument, without much merit.

As to the issue of costs, there had been an earlier adjournment on condition that the Applicant was responsible for costs and no one had disputed it at the time. Again, looking at the grounds of appeal and looking at the overall discretion of costs it seems to me unlikely in the extreme that there is any merit in that matter. Therefore, whilst, of course, merits do not control the exercise of my discretion here re-hearing this matter from the learned Deputy Registrar, nevertheless, it is a factor which is proper for me to take into account.

At the hearings before the Industrial Tribunal the Applicant was represented by Counsel and Solicitor, who were appointed by the Commission for Racial Equality, the CRE, and at the end of that hearing on the 2nd December an oral decision was given by the Tribunal indicating the decision and the findings on each of those matters. It seems to me at that time that it is more than likely, on the balance of probabilities, that some question of an appeal will have been discussed and in any event, although I do not know it for certain, it seems to be likely, that a Solicitor or Counsel whose fees were being met by the CRE, would be in a position to give advice on an appeal and would not merely leave the matter at the door of the Court without further ado. However, the decision was promulgated on the 27th January 1992 and the Full Reasons were sent to the Applicant's Solicitors. They were sent by the Solicitors to the Applicant, on a date of which I am uncertain because no one has informed me, and it is said that the guidance notes were not sent with it, the guidance notes being the IT9 which gives information about appeals. Whether the Solicitors mention appeal, we know not; if intention to appeal there had been, or discussion there had been, a telephone call could well have sorted out the matter.

It is not until the 27th March 1992 that the Applicant approached the Hammersmith Law Centre because her unfair dismissal was due to be heard on the 13th, 14th and 15th April. She was advised then about the appeal to this Court and on the 30th March she filed her Notice of Appeal. She appeals against the Registrar's Order of the 15th April by a letter of the 1st May, which is in itself out of time, because of the 5 day limit, I would extend time as no point has been taken upon it. Her Solicitors were instructed on the 21st May, Legal Aid was granted on the 26th May.

Are these circumstances exceptional, so that time should be extended? I take into account the decision, the grounds of appeal and the merits; I take into account the fact that at the hearing over four days and when the oral decision was given she was in the hands of Solicitors and Counsel; I take into account that there was further communication subsequently in January of this year between the Applicant and her legal advisers; and I take in account that there was a substantial gap between January and March where if she had intended to appeal after seeing that judgment she could have taken advice and indeed, could have gone to a Law Centre or a Citizens' Advice Bureau. This is a situation where I find no exceptional circumstances whatsoever and it clearly one in which the learned Deputy Registrar exercised his judgment on sound grounds, I will dismiss this appeal.