Allison v Yearwood-Grazette [1993] UKEAT 471_93_2406

EAT
Allison v Yearwood-Grazette
[1993] UKEAT 471_93_2406 · 1993-06-24
MR JUSTICE WOOD (PRESIDENT): This is an appeal from a decision of the learned Registrar of this Court refusing extension of time for the filing of a Notice of Appeal. It is a most unusual set of circumstances and as far as we have been able to discover it is the first time we have had to consider this problem.The story starts with an Originating Application of the 8th June 1989 by Mrs Yearwood-Grazette alleging racial discrimination under the Race Relations Act 1976 against her employers Barking, Havering and Brentwood Health Authority and against a number of individuals namely Mr Allison, Mrs Edgar, Mr Williams and Mrs Everett.The hearing took place during June 1990, over several days, before an Industrial Tribunal in London (North). The Applicant was represented by Counsel. The Health Authority was represented by the District Personnel Manager.Having seen and heard the witnesses and heard the submissions the Industrial Tribunal found in favour of the Applicant. They found that Mr Allison was guilty of racial discrimination and that therefore his employers and the Applicant's employers, the Health Authority, were liable. They ordered compensation in the sum of £1,750.00.The finding so far as the Health Authority was concerned is to be found in the last paragraph of the decision which simply says:

"The direct responsibility in this case falls on Mr Allison."

but the Health Authority is liable because no evidence has been shown that a defence under Section 32(3) applied.Turning to Section 32 of the 1976 Act subsection (1) reads:
"Anything done by a person in the course of his employment shall be treated for the purposes of this Act . . . as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."
Subsection (3) provides a defence to employers where the case falls within subsection (1) and that is a question of taking such steps as were reasonably practicable to prevent their employees from doing the acts complained of.The findings of the Industrial Tribunal were therefore findings against Mr Allison. The relevant wording of Section 32(1) is "anything done by a person in the course of his employment" and what they found here, which was done by Mr Allison, was in contravention of the 1976 Act and that it constituted racial discrimination.There was an appeal, and I put it in that way, because it is from this moment that the problems seem to start. There was an appeal to this Court. The original Notice of Appeal was within time, it was subsequently amended. The form of the notice may very well have been part of the problem which arose. Under the suggested form of Notice of Appeal in the Schedule to the Employment Appeal Tribunal Rules 1980, it is suggested that the paragraphs indicate not only the decision from which the appeal is brought but also the parties to the proceedings before the tribunal other than the appellant. If that had happened in this case then it would have been clear that Mr Allison had also had a finding made against him. It does not seem to be clear on the face of the Notice of Appeal. What I think may have happened in this case is that the Notice of Appeal was therefore not sent to Mr Allison. However, it is clear from an affidavit which he swore that he knew that the appeal was in existence because in the affidavit sworn in the present matter on the 4th January 1993, he says that he believed that as the Health Authority were appealing against the decision there was no need for him to lodge a separate appeal.The next thing that occurred was that the appeal came on for hearing on the 1st December 1992 before a division of this Appeal Tribunal presided over by Mr Justice Tucker. The hearing took place that day, the judgment was reserved and was given on the 4th December. Indication had clearly been given that the Health Authority was to succeed in the appeal because by a letter of the 2nd December written by the Solicitors to the Applicant, Mrs Yearwood-Grazette, there was the indication of a claim that the Applicant would look to Mr Allison personally for the payment of the £1,750.00. Mr Allison replied at once on the 3rd December saying that he was astounded and that he had instructed the Health Authority's Solicitors to act on his behalf. He wrote on that same day, the 3rd December, to ask those Solicitors to act for him and enclosing a letter from Messrs Brian Thompson, the Solicitors for the Applicant. I am told that those two letters were not drawn to the attention of Mr Justice Tucker before he delivered his judgment on the 4th December which was a Friday. It may be that neither member of the Bar, who had been before him on the appeal, Mr Bowers and Mr Kibling, were there to take the judgment, but in any event judgment was given on that date and it was given orally. In that judgment this Appeal Tribunal found that the decision of the Industrial Tribunal was erroneous in law. They found, treating the matter generally, that the Tribunal had failed to give sufficient reasons for their decision, they had failed to compare like with like and there were several other mistakes. One of which is pointed out in particular, namely, the finding that Mr Allison had dealt with the complaints against the Applicant in a way which was unfair and contrary to natural justice. They find that the facts found by the Tribunal were contrary to particular documents which are specified in that judgment. It followed that the Health Authority succeeded because the finding that anything done by a person in the course of his employment was a finding which was erroneous in law and the matter was remitted.The order was drawn up dated that 4th December, it recited that the judgment was reserved and then the order read as follows:
"that the Appeal be allowed to the extent that the matter be remitted to a differently constituted Industrial Tribunal for rehearing of the questions of liability and quantum in accordance with the Judgment of the Appeal Tribunal"
in order for that to be effective it would, of course, and is necessary, that the decision of the Industrial Tribunal be set aside and I so read the order in that way. If it was necessary to correct it no doubt application could be made to Mr Justice Tucker but it must be clear that if the matter is to be reheard on liability and quantum because of the way in which the appeal has been decided, namely that the finding against Mr Allison was unsafe and erroneous in law, that the original decision must be set aside.What happened thereafter was this. The judgment of Mr Justice Tucker, after it had been transcribed, was stamped as dated 8th January 1993 and was sent to both parties. It was received by the Applicant's Solicitors, Brian Thompson on the 11th January. I am told that it was only received by the Solicitors acting for the Health Authority on the 27th January, that seems to me to be really rather a long time but nevertheless it was received at some time either on the 11th, or between the 11th and 27th, even if one took the most cynical of views about the matter. The Notice of Appeal on behalf of Mr Allison is dated the 29th January 1993 and an application is sent with it for extension of time. Of course, the extension of time from the original decision promulgated in June 1990 is enormous. The extension of time from the correspondence of December and the judgment which was received in January was not so long.The learned Registrar looked at the letters sent in and the affidavit. She decided that she would not extend time. I am looking at this afresh and indeed, from what I have already said in this judgment, a great deal more information is before me than was ever before the learned Registrar. Basically, two aspects of this case are to be examined. The first is the effect, or situation in law, irrespective of any appeal by Mr Allison. It seems to me that the only way in which the Health Authority can be liable under Section 32(1) of the 1976 Act is through the liability of Mr Allison. During submissions I suggested that looking at it diagrammatically, the chain leading from the Applicant's claim to the liability of the Health Authority had to pass through Mr Allison and if the chain was broken before it reached Mr Allison then the Health Authority was not liable but it would have to be at that juncture and not in the nexus between Mr Allison and the Health Authority that the chain was broken. The reasoning of this Appeal Tribunal in the judgment of Mr Justice Tucker seems to me to indicate that that was so.Thus, unless the order of this Court is to be understood in the way in which I have understood it, it would mean that when the matter was returned to an industrial tribunal for a rehearing and as no defence is to be raised under Section 32(3), Mr Bowers has given an undertaking that that is so, the Applicant, if the submissions of Mr Kibling are right, would merely say "res judicata". The decision of the Industrial Tribunal vis-a-vis Mr Allison has not been disturbed, there is nothing more to decide, no defence is raised under Section 32(3) therefore it has already been found that what was done by Mr Allison was in breach of the Act, it is not denied that it is in the course of his employment, therefore you do not need to rehear anything, the Health Authority are liable, and if that were right the Health Authority would be bound to bow to that decision. It seems to me that that cannot be so, therefore, in my judgment, the whole of the decision of the Industrial Tribunal which was promulgated in June 1990 was in fact set aside by the decision of this Court on the appeal. That being so there is really no need for me to take the matter further. However, lest that be thought on any other occasion that that is not the correct approach in law, I will review the decision not to extend time.These circumstances were most unusual. I am satisfied that although Mr Allison may have heard that an appeal was in being that he was not, in fact, served with the Notice of Appeal and that that may have occurred because there was no notification on the face of the Notice of Appeal that other parties were involved. This is a matter from which, perhaps, we can all learn and I will certainly look with the learned Registrar at our own internal procedures. It would, however, be easier for the clerical staff if the form of the Notice of Appeal, in general terms, was followed by legal advisers, for the very good reason which I have already mentioned. Thus, Mr Allison realised that a suggestion was being made that he was liable personally by the correspondence in early December. He at once instructed Solicitors. Those Solicitors at once wrote to the Applicant's Solicitors and thereafter they were entitled, in my judgment, to await the judgment of this Court to see what the reasoning was and how it would affect Mr Allison himself. It is not quite clear, but I am given to understand, that neither Counsel appeared when the reserved judgment was given orally on the 4th December. However, there is therefore a delay between the receipt of the judgment even taken as I said, cynically, as the 11th January, there is a delay of some 16 days.My attention has been drawn to a recent judgment of my own in the case of Payne & Others v. Port of London Authority (PA/40/93) where I have sought to set out from the various authorities the approach that this Court will take in appeals from learned Registrars against the refusal to extend time. Basically, we will follow the guidance of the Court of Appeal but we will take a stricter approach because we are a specialist court. So I look here, to look at the tests suggested by Lord Griffiths in C M Van Stillevoldt BV v. E L Carriers Inc. [1983] I WLR p.207 and I see:1. the length of the delay;2. the reasons for the delay;3. the chances of the appeal succeeding if extension of time is granted;and 4. the degree of prejudice to the Respondent if the application is granted.The length of the delay here is a number of days during January of this year, amounting in all probably to about a fortnight on the view of the facts most favourable to the Applicant. The reasons for the delay are most unusual. If the delay is thought to have been from the original decision they are exceptional. However, the whole story as I have recited it is one which is unusual and as to the third test, the chances of the appeal succeeding, in my judgment it will inevitably succeed because of the reasoning of the decision already given. Lastly, the degree of prejudice to the Respondent in my judgment is first very slight because of the view I have taken in any event of the law and the likelihood of the situation being any different if the present order stood, but also the knowledge, if the point was going to be taken in the correspondence in early December, was that the claim was made against Mr Allison, it could have been made against him personally far, far earlier. Indeed, so far as the money is concerned, there is no fear of that because the Solicitors to the Health Authority had been put in funds and the money is on deposit earning interest. The prejudice therefore is the prejudice in the very fact that an extension would be given and that therefore the order of the learned Registrar would be set aside.As I have said, I have looked at this whole matter, there is a great deal of information before me to which I have had regard, I am exercising my discretion afresh in the circumstances and indeed, in justice to the parties, because of the way in which this whole matter has evolved. In my judgment the correct decision here is to extend time and allow the Notice of Appeal to be served with the necessary extension so that it is a valid Notice of Appeal by Mr Allison.I am most grateful to Counsel for their help in what I think was the first occasion when this particular problem has arisen.