DR J B ILANGARATNE v THE BRITISH MEDICAL ASSOCIATION [1999] UKEAT 1408_98_2909

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1408_98_2909Case No Appeal No. EAT/1408/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR J B ILANGARATNEAPPELLANTTHE BRITISH MEDICAL ASSOCIATIONRESPONDENT
Before
Mr Justice MorisonDate 29 September 1999
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondents MR J QUIGLEY (Solicitor) British Medical Association Legal Dept, BMA House Tavistock Square London WC1H 9JP MR JUSTICE MORISON (PRESIDENT) : This is an appeal against the Registrar's refusal to allow an amendment to the Notice of Appeal in this case. The Appellant, Dr Ilangaratne, appealed a decision of an Employment Tribunal by a Notice of Appeal dated 20 November 1998. That Notice of Appeal contends that the Tribunal's decision was perverse in that it failed to find relevant facts or to take into account the nature of the Appellant's mental disability and the effect that that had on his relationships with BMA's lawyers, in determining whether or not he had been treated less favourably. The second ground was that the Tribunal's decision in extended form did not give sufficient reasons and details as to why the Appellant's claim for disability discrimination failed.[2]The matter came before the EAT at a preliminary hearing on 11 May 1999. The court, with Judge Peter Clark presiding, concluded that the appeal should be allowed to go through for a full hearing in relation to the matters specified in their judgment and they gave directions as to the way the Notice of Appeal should be re-cast accordingly.[3]The Notice of Appeal was in fact amended, pursuant to that direction from the court on 11 May 1999, confining the grounds of appeal to this:
"The Tribunal erred in law in rejecting the Appellant's claim for disability discrimination solely on the basis that the Respondent would have treated a non-disabled person in the same way in the same circumstances. The correct question being whether the Respondent would have treated someone to whom the material reason relating to the Appellant's disability did not apply in the same way."
[4]No objection could be taken to that amendment. However, the Appellants then sought leave to make a further amendment to the Notice of Appeal following a decision of the House of Lords on 15 July 1999 in a case called Swiggs & Others v Nagarajan . By their decision the House of Lords rejected the Court of Appeal's formulation of the test in a victimisation case. The Court of Appeal had suggested that there needed to be motivation of a discriminatory nature whereas the House of Lords rejected that view.[5]The proposed amendment therefore, is that the Tribunal erred in law in rejecting the Applicant's claim for victimisation on the basis that no alleged act of victimisation was motivated by the fact that a protected act had been undertaken. In other words, the Appellant was seeking to take advantage of what could be loosely described as "a change in the law".[6]This was the first time, as I see it, that the Appellant wished to challenge the Tribunal's conclusion on the question of victimisation. The decision of the Employment Tribunal was promulgated on 13 October 1998. Thus it is well out of time for the Appellant to be seeking to introduce a wholly new ground of appeal.[7]The basis upon which the application is made is because there has been a perception that the law has changed. Just dealing with the time point first, I am not satisfied that we have been provided with any sensible explanation as to why the appeal on this point has been framed so late in the day. This was not a case where they were challenging the finding of victimisation, but are simply saying that the law has changed and they wish to take advantage of it. That seems to me not to provide a good reason for extending time for lodging an appeal on this point, having regard to what was said in a previous decision of this court in a case called Setiya v East Yorkshire Health Authority [1995] ICR 799.[8]In these circumstances I am satisfied that, in the exercise of her discretion, the Registrar was entitled to refuse to grant the application for leave to amend and, as I agree with her decision, I dismiss this appeal in the exercise of my discretion. In the interests of finality and certainty, amongst other factors, it would be wrong in my view to open the door to a ground of appeal which has not been mentioned since October 1998, when the decision was given.[9]The appeal will be dismissed.