MRS S DAVIS v COUTTS & CO [1999] UKEAT 291_99_1907

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 291_99_1907

Case No Potential Appeal No. PA/291/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS S DAVISAPPELLANT

COUTTS & CORESPONDENT

Before

Mr Justice Morison

Date 19 July 1999

[1]APPEARANCES For the Appellant MR J CLAY (of Counsel) Instructed By: Messrs Ouvry Goodman & Co Solicitors 12 High Street Sutton Surrey SM1 1HP For the Respondents NEITHER PRESENT NOR REPRESENTED MR JUSTICE MORISON: This is an appeal against the Registrar's order dated 23 April 1999. She refused permission to Mrs Davis to appeal against part of a decision of an Employment Tribunal. That part of the decision which she wished to challenge, out of time, related to their finding that she had not been discriminated against by reason of her disability. The Tribunal had accepted her complaint that she had been unfairly dismissed by her former employers, Messrs Coutts & Co who are the Respondents to the cross appeal. The position is that the decision of the Employment Tribunal was sent to the parties on 12 January 1999. They gave their reasons for finding that Mrs Davis had been unfairly dismissed after 27 years of service with the bank, and, also, in paragraphs 32 through to 35, their reasons for rejecting her complaint that she had been also discriminated against by reason of her disability. In essence, the Employment Tribunal concluded that the Applicant was not disabled within the meaning of the Disability Discrimination Act 1995.

[2]After that decision was received by the parties, there were 42 days for lodging a Notice of Appeal. Mrs Davis had the benefit of being represented by Counsel at the hearing before the Employment Tribunal and the services of a solicitor and she, I am satisfied, considered her position with the benefit of legal advice after the decision had been received. It was her view at that time that she could "live with" the decision as it stood having succeeded on unfair dismissal with the question of remedy thereafter to be considered, even though her claim for disability discrimination had been rejected.

[3]On the last day available to them, the employers, Messrs Coutts & Co who also had the benefit of solicitors and Counsel lodged a Notice of Appeal alleging that the Tribunal had gone wrong when it made its decision on unfair dismissal. That provoked Mrs Davis into reconsidering her position, on legal advice, and it was thought prudent that she should protect her interests by also appealing now against the conclusion that she had not been discriminated against on grounds of her disability. That application was promptly done within 12 or 13 days of the Notice of Appeal being received by her team.

[4]Technically it seems that the cross appeal is out of time, but in the circumstances where it was, in my judgment, appropriate for Mrs Davis to act as she did, it would be an injustice to her if I were not to extend time to enable her to raise the issue of disability discrimination if the employers are to be entitled to appeal against the unfair dismissal complaint which was upheld against them. As I have indicated, she has acted reasonably and promptly having regard to the background which I have recited. In those circumstances, in my judgment in the exercise of my discretion, there will be no prejudice - although some has been indicated by the employers – to the employers if I were to extend time.

[5]It seems to me that the Employment Appeal Tribunal should consider both appeals at preliminary hearings where it can be decided whether either of them shows an arguable point of law, and if so, which. Accordingly, the appeal will be allowed. I will extend time for the cross or separate Notice of Appeal raised by Mrs Davis so as to make it within time. The employers have not appeared but I have taken into account in exercising my discretion their opposition to the extension of time contained in a letter dated 31 March 1999. As I have indicated, they sought to allege that prejudice might be suffered. I am unable to detect any. It seems to me that they are making what could be described as an opportunist point to try and prevent this issue from being canvassed at the appeal. If they had not appealed there would have been no cross appeal. For the reasons given, the appeal is allowed.