Basra v Air Canada & Anor [1998] UKEAT 621_98_0112

EAT

Basra v Air Canada & Anor

[1998] UKEAT 621_98_0112 · 1998-12-01

THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is an appeal against the Registrar's Order refusing to extend time for the lodging of a Notice of Appeal on Mrs Basra's behalf against a decision of an Industrial Tribunal which runs to some 12 typed pages and was sent to the parties on 20 February of 1998. The decision followed a 4 day hearing, a fifth day was taken by the Tribunal in Chambers to consider their decision. The Tribunal was considering Mrs Basra's complaint that she had been discriminated against by the Respondents.

During the course of the hearing, as a result of evidence which was given, a question arose as to whether Mrs Basra should be including within her complaint an allegation of victimisation contrary to the Sex Discrimination Act. The Tribunal said this:

"After the close of the evidence, Counsel for Mrs Basra asked that the Application be amended to include an allegation of victimisation contrary to the Sex Discrimination Act. This arose because Mr Green, in his evidence had said that one of the reasons he had for not employing Mrs Basra, was that she had lied in her Application to the London (North) Industrial Tribunal in her complaint of sex discrimination. That evidence had only arisen during this hearing and therefore there was no opportunity to bring it earlier. We would not grant that application, the evidence had by then finished. This was a 4 day hearing dealing with 7 different Applicants and it was not appropriate, in our view, to reopen the evidence than to deal with that matter. It was open to the Applicant to bring a fresh complaint (which he now has) and to ask the Tribunal to allow the case to proceed on the grounds that she has only just come into the knowledge that her rejection for this job might be an act of victimisation. We appreciate that this might may well mean rehearsing the interview and its result again, but we would have thought this could easily be dealt with in one day."

Having received the Tribunal's decision, it is clear that a decision was taken on the appellant's behalf that an appeal should not be presented to the Employment Appeal Tribunal and thus there was no appeal within the 42 day period allowed for making an appeal. What then occurred was that on 14 May 1998, the Court of Appeal handed down a judgment in the case of Divine-Bortey v London Borough of Brent . That case dealt with the issue as to the extent of the application of what is called the Henderson v Henderson version of quasi-issue estoppel.

It appeared to the advisers to Mrs Basra that the approach taken by the Court of Appeal could raise a problem for her victimisation complaint; the argument being that she might be faced, when she asks for her victimisation complaint to be heard by the Industrial Tribunal, with a defence, that the original Tribunal should have considered all questions of discrimination and that by its judgment, it had dealt with such allegations and it was not open for her to have another bite at the cherry. Accordingly, within a short period thereafter the Notice of Appeal was presented to the Employment Appeal Tribunal. The basis therefore for this Application that was made to the Registrar to extend time is simply that the law had changed between the date when the original decision had been taken not to appeal and the date when the appeal was promptly presented. Accordingly, it would be just that time should be extended so as to protect Mrs Basra's position.

The Registrar considered this matter and refused to extend time. There is a short period of time for dealing with appeals from interlocutory orders and the appeal in this case is out of time against the order which she had made. The explanation for this is that due to pressure of work, the lawyers between them did not get an appeal in here against the Registrar's order within the time. As Mr Levinson correctly pointed out, although the time period for an appeal from the Registrar's decision is short, it is clear that an appeal can be notified to the Employment Appeal Tribunal orally and therefore it is easy to comply with the restricted time limit. Therefore it is incumbent on the Appellant in this case to ask for an extension of time, both in relation to the Notice of Appeal and in relation to being late in an appeal from the Registrar's order.

I will turn to the substantive matter first. I am not persuaded that the Divine Bortey decision provides any good reason why it should now become necessary to appeal the decision against Mrs Basra as opposed the decision which was previously taken. Divine Bortey is no more than, it seems to me, an application of the Henderson principle, Henderson itself being decided 150 years ago. It seems to me, in any event that it is unlikely that the Employment Appeal Tribunal will extend time merely because the law appears to have changed even if it has not. In my judgment, the decision in Settier v East Yorkshire Health Authority is of assistance. There the learned President, Mr

Justice Mummery said this:

"It cannot be right in my view to extend the time for appealing on the basis that two years after the decision, the law appeared to the House of Lords to be different than it appeared to the Tribunal to be in 1992. Life including the law is subject to the chance of change. The Applicant's claim against the Health Authority was subject to the hazards of time inherent in change. It is true that if the Applicant had been dismissed in October 1994 instead of October 1991, that he would have had a right to have his claim for unfair dismissal heard by the Industrial Tribunal. That does not however justify an extension of time for appealing so as to question the validity of an unappealed decision which was final and binding between these parties when it was decided. I am as reluctant to disturb that decision as I would be to question a compromise reached between the two parties at that time, which was it was sought to set aside subsequently on the basis of the legal position was now different from what it was thought to be when the parties settled their differences".

It seems to me that that is a principle of general application. The fact that the time period is considerably less on this appeal than that which the Court was concerned with in the Settier case does not seem to me to denigrate the validity of the general approach. Furthermore, it seems to me to be entirely right that the public interest in finality of litigation should lead to the conclusion set out in the Settier decision. I therefore do not consider that I have been provided with a good excuse for this appeal being lodged out of time. In my view, Mr Levinson was correct when he said that this is a case, where perhaps understandably, the lawyers have taken a decision which now appears to have been mistaken. In my judgment, that is not a basis for extending time for appealing.

It follows therefore that I do not need to deal expressly with the fact that this appeal is out of time as against the Registrar's decision. Had I been forced to consider that issue, I am bound to say that I would not have been satisfied that I had been provided with an excusable reason for there being a late appeal from her decision, but I do not decide the issue on that basis because it seems to me that looking at the heart of it, this is not a case where I should extend time. I would like to add that nothing that I have said in this judgment should be taken as an indication to the Industrial Tribunal in due course as to whether it would be open to them or not to continue with the victimisation claim, that is a matter which they will have to consider themselves.