Appeal No.	 EAT/942/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 March 2000

Before
HIS HONOUR JUDGE PETER CLARK
(AS IN CHAMBERS)

MR A WILLIAMS-KEY	APPELLANT

ANITE SYSTEMS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR N SMITH
(of Counsel)
Messrs Farrells
Solicitors
9 Portland Square
Bristol BS2 8ST	
For the Respondent	MISS K GALLAFENT
(of Counsel)
Messrs Stephens & Bolton
Solicitors
1 The Billings
Walnut Tree Close
Guilford  GU1 4YD	

JUDGE CLARK

This is an appeal by the Appellant, Mr Williams-Key, against an order of the Registrar dated 20 October 1999, refusing him permission to amend his Notice of Appeal in this case (EAT 942/98).  There is a separate appeal by the Respondent, Anite Systems Ltd (898/98) with which I am not concerned today.

1	The background is this:  The Appellant commenced employment with the Respondent on 1 February 1985.  On 11 March 1997 he went off work due to illness, diagnosed as Post-viral Syndrome (PVS).

2	On 27 October 1997, while still off work he presented an Originating Application to the Bristol Employment Tribunal in which he raised these claims:
(1)	Breach of contract, alternatively unauthorised deductions from his wages in respect of payments which he alleged were due to him under a Permanent Health Insurance policy which the Respondent was contractually obliged to provide for his benefit.
(2)	Disability discrimination

3	By the time that the substantive hearing of this case took place before an Employment Tribunal (Chairman:  Mr C E Sara) sitting on 17 June 1998 the Appellant had added a further claim relating to his Terms & Conditions of Employment (the Section 11 reference).  The Respondent did not appear at that hearing, their Notice of Appearance having been struck out for failure to comply with an order for discovery.  It is that strike out order which is the subject matter of the Respondent’s appeal 898/98.

4	By a decision with extended reasons dated 29 June 1998, Mr Sara’s Employment Tribunal dismissed all 3 claims.

5	By a Notice of Appeal dated 13 July 1998, the Appellant appealed against the Employment Tribunal’s decision to dismiss his claim for unauthorised deductions (the former Wages Act claim) and the Section 11 reference.  The breach of contract claim was not pursued before the Employment Tribunal since the employment had not been terminated.  The Appellant did not raise any ground of appeal relating to the dismissal of his disability discrimination claim by the Employment Tribunal.

6	The appeal came on for preliminary hearing on 27 November 1998.  In a judgment which I gave on behalf of the Employment Appeal Tribunal on that occasion, we allowed the matter to proceed to a full hearing on both the former Wages Act point and the Section 11 reference point.

7	Hitherto the Appellant had conducted his case in person.  It seems that in about August 1999, the Appellant consulted solicitors.  As a result of those solicitors discussing the matter with Counsel, he learnt for the first time on 25 August of the Court of Appeal decision in Clark –v- Novacold [1999] IRLR 318.  Judgment in that case, overruling in part the Employment Appeal Tribunal’s decision (Morrison J presiding) [1998] IRLR 420, was delivered on 25 March 1999 and first reported in the Times on 1 April 1999.  Following a conference held with Counsel on 16 September, Counsel having been away on a pre-arranged holiday prior to 14 September, a draft amended ground of appeal was lodged with the Employment Appeal Tribunal on 6 October 1999.  For the first time the point was taken that Mr Sara’s Tribunal had erred in law in dismissing the Appellant’s claim of disability discrimination by relying on the approach of the Employment Appeal Tribunal in Novacold.

8	I return to the Employment Tribunal’s extended reasons.  They deal with the Appellant’s disability discrimination claim at paragraphs 18-22.  It is clear that the Employment Tribunal proceeded on the basis, in accordance with the Employment Appeal Tribunal decision in Novacold, that the 1995 Act required a comparison to be made between the Appellant and an employee who had been off work but who was not disabled within the meaning of the Act.  I refer specifically to paragraph 21, where the Employment Tribunal record that the Appellant put forward what is described as the novel proposition, that a person who is off sick due to disablement is treated less favourably than a fit person because he has not paid his salary whereas the person who not disabled and therefore is at work, is paid his salary.  The Employment Tribunal described that as a manifestly absurd proposition and applied the Employment Appeal Tribunal’s approach in Novacold.  The Employment Tribunal found that the Appellant was disabled for the purposes of the Act, but his claim was dismissed when comparison was made with a non disabled employee.

9	Following the Appellant’s solicitor’s letter of 6 October, correspondence ensued between the Registrar and the parties.  Objection was taken to the proposed amendment by the Respondent.  The Registrar upheld those objections, hence the refusal to grant permission to amend on 20 October 1999, and hence this appeal.

10	The argument before me can be summarised in this way.  For the Appellant it is said by Mr Smith that, as a litigant in person, he could not be expected to have known of the Court of Appeal decision in Novacold, disapproving the earlier approach of the Employment Appeal Tribunal as to the question of comparators, until he took legal advice.  Having done so, it is submitted that the new point raised in the amended ground of appeal has merit; steps were taken to raise the point shortly after the conference with Counsel held on 16 September 1999; and whilst appreciating, the requirement to balance the need for finality with justice to the Appellant, Mr Smith invites me to allow the amendment.

11	For the Respondent Miss Gallafent submits that this application should be treated as if it were an application for extending time for appealing applying the principles in United Arab Emirates –v- Abdelghafar [1995] ICR 65.  Mr Smith does not dissent from that proposition.  Approached in that way, argues Miss Gallafent, there are no exceptional circumstances justifying an extension of time of more than a year since the 42 day time limit for appealing the Employment Tribunal’s decision of 29 June 1998 had expired.  Further, she submits that the fact that a subsequent decision of a higher court rendered the legal basis for the decision below unsound is not enough to justify an extension of time.  She relies on the decision of this tribunal, Mummery J presiding, in Setiya  -v- East Yorkshire Health Authority [1995] IRLR 348.

12	In response to that latter point, Mr Smith submits that there is a distinction to be drawn between the Setiya case, which was concerned with the effect of the House of Lords decision in the Queen –v- Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176 on domestic legislation relating to part-time employees and the present case, where the Court of Appeal has simply overruled the Employment Appeal Tribunal decision in relation to the proper construction of the Disability Discrimination Act 1995.

13	I am bound to say, I can see no distinction in principle and it seems to me that the approach of Mummery J in Setiya, which is also to be found in his judgment in Staffordshire County Council –v- Barber, later upheld by the Court of Appeal in the Barber case (1996) ICR 379, applies to the present case.

14	I accept that I have the discretion in the matter, but it seems to me that that discretion must be exercised judicially in accordance with guiding legal principles.  It seems to me that either the Appellant raised the question of the correct test, under Section 5(1)(a) of the 1995 Act before the Employment Tribunal, in which case there is no good excuse for his not appealing an adverse finding by that Employment Tribunal, or the point was not raised below, and in my judgment there are no exceptional circumstances which entitled him to raise it for the first time on appeal, see James –v- Burdett Coutts School [1998 IRLR 521.  

15	Taking all these matters into account it seems to me that the Registrar was right to refuse this application for permission to amend and in these circumstances I shall dismiss this appeal.