England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London WC2A Monday 29 January 2001

Monday 29 January 2000

1. LORD JUSTICE MUMMERY: This is a renewed application for permission to appeal. The application arises in the following circumstances. Dr Abegaze, who conducts these proceedings in person, made an application in July 1996 for a professional research position with British Telecom in the mobility area of networks. There was an opening for such a position at BT's technology centre at Martlesham Heath. Dr Abegaze says that he was well-qualified and suitably experienced for the position. He was interviewed on 9 August 1996, but was not offered the job. He says that BT's reason for not offering him the job was his colour and ethnic background. British Telecom say that the reason was that they wished to recruit someone who had wider-ranging experience.
2. Dr Abegaze started proceedings in the Employment Tribunal on 6 November 1996, complaining of race discrimination. On 17 April 1998, the Employment Tribunal struck out the appearance, of which British Telecom had given notice, and debarred British Telecom from defending. The basis of that order was that British Telecom were in default by not complying with a disclosure order. The Tribunal proceded to make a finding of discrimination in Dr Abegaze's favour.
3. However, on 13 May 1999, on an application for a review by British Telecom under rule 11(1)(e) of the Rules of Procedure, the Employment Tribunal granted the review, set aside the earlier decision in Dr Abegaze's favour and restored British Telecom to the proceedings.
4. The result was a substantive hearing in September 1999. On 27 September 1999 the Employment Tribunal gave extended reasons for making the following decisions: (1) that BT's application to review the decision of 17 April 1998 [paragraphs 2 and 3] was allowed to proceed; (2) that the application for review succeeded and the decision at paragraphs 2 and 3 promulgated on 17 April 1998 were set aside; (3) that BT's application to strike out Dr Abegaze's application under Rule 13(2)(e) succeeded and the application was dismissed. Finally, Dr Abegaze's application to review the decision of 13 May 1999 was dismissed.
5. Dr Abegaze appealed. In his notice of appeal, received in the Employment Appeal Tribunal on 4 November 1999, he sought to appeal not only the order of 27 September 1999, but also the earlier order of 13 May 1999 by which the earlier decision in his favour had been set aside and BT restored to the proceedings.
6. The matter came before the President of the Employment Appeal Tribunal, Lindsay J, on 12 May. He refused to extend the time for appealing the order of 13 May 1999. But Dr Abegaze was entitled to proceed with his appeal against the Employment Tribunal order of 27 September 1999, for which the notice was in time. A direction was given by the Employment Appeal Tribunal to amend the notice of appeal to remove the grounds for appealing the order of 13 May. Dr Abegaze applied for permission to appeal that ruling. That was refused, but it was pointed out to him that he was entitled to apply to the Court of Appeal.
7. Dr Abegaze made an application for permission to appeal to this court. An application is judged on this test: does it have a real prospect of success? In answering that question, two things have to be borne in mind. First, appeals can be brought only on points of law, not on factual matters. Secondly, this is an appeal against the exercise of a discretion. It is within the discretion of the Employment Appeal Tribunal whether or not to extend the time for appealing in a case where the appeal is brought out of time. The tests for exercising that discretion are well-established. First, the applicant must give a good reason for not bringing his appeal within time. Secondly, the exercise of the discretion is reserved for exceptional cases. The rule is that, if you wish to appeal, you must do so within six weeks of the decision which you are seeking to appeal. The Employment Appeal Tribunal held that this was not a suitable case for exercising the discretion in Dr Abegaze's favour.
8. The matter was put before me on the papers. I came to the conclusion that there were no reasonable prospects of this appeal succeeding. Dr Abegaze did, however, have the right to a hearing in court to make clear why he considered that he had a good chance of winning his appeal. He has appeared this morning in person.
9. He made a number of points, supported by documents which he handed in. His first point is that he has appealed in time. He said that what is under consideration here is in fact a single decision, and that he has brought his appeal against that single matter within time. The appeal of 27 September is admittedly within time. That is just part of the decision made on 13 May 1999, setting aside the order of 17 April 1998 and restoring British Telecom to the proceedings. He said that it is an interlocutory order and that there are good reasons for extending time. What has happened in this case, he said, is a procedural mishap in a complex and unique case. That must be borne in mind, as must his prospects of success. He has an appeal with merit. He said that he has a strong case. He pointed out that British Telecom will not suffer any prejudice if he is permitted to appeal out of time.
10. He produced from his MP, Oona King, a letter on House of Commons note paper mentioning her speech on a recent debate on a Race Relations Amendment Bill. The Bill would strengthen existing laws by extending the protection of the Race Relations Act 1976 to public bodies, making it unlawful for them to discriminate on the ground of race and incorporating a duty to promote quality.
11. He referred me to a letter dated 10 January 2001 from the London Fields Medical Centre, signed by a Dr K Hill. There is no need to read it out in open court. Dr Abegaze says that his medical condition, as described by the doctor in an attached statement, is such as to make any failure on his part to bring the appeal within time excusable, and that I should therefore grant permission to appeal against Lindsay J's refusal to extend time.
12. He referred me to an order made by consent in the Employment Appeal Tribunal on 15 July 1999, containing various provisions as to how the matter should proceed in the Employment Tribunal. He relies on that order as relevant to his submission that in this case he has appealed in time from the order of 13 May 1999.
13. I have considered all these matters. There is real difficulty in Dr Abegaze's attempt to appeal the Employment Appeal Tribunal decision. I am unable to find in any of the papers submitted to me a notice of appeal from the order of 13 May 1999 which bears a date within six weeks of that order. I therefore have to proceed on the basis that no notice of appeal was brought within time against that decision, even though a notice of appeal was brought in time in November against the substantive decision of 27 September. November 1999 is well out of time for appealing against a decision made in May 1999. In my view, Lindsay J did not commit any error of law in exercising his discretion to refuse to extend the period for appealing.
14. As I have pointed out, it has to be shown that there is a good excuse for not appealing within time from 13 May. Dr Abegaze was well able to appeal within time from the decision of 27 September 1999, and I see no difference in the circumstances relating to his failure to appeal against the earlier decision. An appeal against a discretion can succeed only if it is shown that the person exercising the discretion has committed a legal error by taking into account irrelevant matters, or leaving out of account relevant matters. That has not been shown in this case. I refuse permission to appeal.
15. Dr Abegaze is entitled, therefore, to pursue in the Employment Appeal Tribunal his appeal against the 27 September 1999 decision, but he is not entitled in that appeal to seek to reopen the exercise of the Employment Tribunal's review power in making its order of 13 May 1999.
16. The application for permission is refused.
ORDER: Applications refused