Appeal No. EAT/421/91
	Potential Appeal No.PA/331/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 21st November 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD 

	MR J H GALBRAITH

	MR S M SPRINGER MBE

NATIONAL WESTMINSTER BANK PLC	APPELLANTS	

MR S HUSSAIN	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR L CRAWFORD
(Of Counsel)
Wilde Sapte
Queensbridge House
60 Upper Thames St
LONDON
EC4V 3BD

For the Respondents	MR D BROWN
Free Representation Unit
13 Grays Inn Square
LONDON
WC1R 5JP

	MR JUSTICE WOOD (PRESIDENT):  We have before us three issues, the first issue is an Appeal from a Decision of the learned Registrar of this Court of the 31st July of this year refusing leave to appeal out of time from a Decision of an Industrial Tribunal sitting at London (North) and promulgated on the 22nd January of this year.

	Secondly, we have to examine a Review Decision of the same Industrial Tribunal of the 20th May of this year and if we grant leave to appeal out of time in respect of the January Decision we must then look at that Decision and see how to deal with it.  That is the third issue.

	The Applicant was a Mr Hussain who issued an Originating Application dated the 10th August 1990 alleging racial discrimination contrary to the provisions of the Race Relations Act 1976 against his employers the "National Westminster Bank".  One of the issues raised in those proceedings was whether his Originating Application was in time under the provisions of that Act.  The provisions as to time are to be found in Section 68 and it is a period of three months subject to extension where a tribunal considers that it was just and equitable to do so.  That issue of time and jurisdiction to hear those proceedings came before the Tribunal at that first hearing.  It took place on the 14th January of this year but the Decision was dated the 22nd January and was then sent to the parties.

	The Decision of the Tribunal in January was that it had jurisdiction under Section 68 to hear the case on its merits but in the actual Decision which is at the head of the Judgment there is a sentence which reads:
"But see the last paragraph of the Full Reasons herein"

When one goes to that last paragraph it reads as follows:
"When I, as Chairman came to put the Decision into writing I can reconsider Kapur's case"

that case is in fact Barclays Bank v. Kapur [1989] ICR 753 in the Court of Appeal,
"and came to the conclusion that I had misunderstood it.  My view now is that Kapur's case points toward a decision in favour of the Respondent, not the Applicant.  The case of Larkfield of Chepstow Ltd v. Milne [1988] ICR 1, EAT, holds that a Tribunal may invite a party to apply for a review.  That is what I now do;  I invite the Respondent to apply for a review."

	The situation therefore, was this, that on the 14th January an oral announcement of the Decision had been made in favour of the Applicant, that was faithfully followed in the Full Reasons but in considering those Full Reasons the learned Chairman had decided, and was frank enough to say, and entirely right to say, that he thought he was wrong in law, and he then invited a review.

	In the interim between the 14th and the 20th January, Counsel who had appeared for the Bank together with his Instructing Solicitor had advised the Bank to appeal against that oral Decision.  They thought the Tribunal was wrong in the way it had looked at Kapur and indeed the learned Chairman agreed with them when he came to write his Full Reasons, however, the Solicitor's for the Bank wrote seeking a Review as invited by the learned Chairman.  They did so by letter of the 31st January setting out the grounds of their application and make it clear that they are seeking a review on the basis of the invitation from the learned Chairman.  They, as a matter of courtesy, sent a copy of that letter to Counsel who had been appearing for the Applicant in January, and she sent a reply to the Solicitors.  There was discussion in both those letters as to possibly the cheapest way of dealing with the matter and also the issue of the exercise of the discretion under Section 68(6).

	The Tribunal also, through the Secretariat, sent a letter to the parties which in its second paragraph reads as follows.
"The Chairman has asked me to say that the case will be listed for a Review Hearing before the same Tribunal.  The Tribunal will first decide whether to grant a Review, if it does grant a Review the Review will be held there and then.  The Chairman envisages that the Review will consist of legal arguments centred on the true meaning of Kapur's case and any related cases that may be cited."

	The matter came back before the Tribunal on the 15th May.  There was a Hearing on that date, the same Members of the Tribunal were there, and as I have already said, that Decision, in full, in writing, was promulgated on the 20th May.

	At the Hearing Counsel for the Applicant took a point that there was no jurisdiction in the Tribunal to carry out a Review because the Order being reviewed was an Interlocutory Order.  She had apparently, so she frankly told the Tribunal, only thought of this point the night before, but she took it.  It went to jurisdiction and the Tribunal very rightly, looked at that point although it was only taken at the last minute.  Mr Crawford, who appeared for the Bank has told us they were taken somewhat by surprise, but there it is, it is argued and the Tribunal reached a Decision.  

	The Tribunal also went on to consider the issue of Section 68 and the question of time; in doing that the majority found that the application was out of time and a single Member decided that in his view it was reasonable to exercise discretion under Section 68(6).

	As to the issue of jurisdiction the Tribunal decided that it had no power to conduct a Review and its reasons are set out admirably and succinctly in paragraph 3 of that Decision of May.
"After hearing argument we deliberated and announced our conclusion, which is that we do not have jurisdiction.  Our reasoning is as follows.  Rule 10 gives a Tribunal power to review a `decision'.  The Regulations (the Industrial Tribunals (Rules of Procedure) Regulations 1985), to which the Rules are a Schedule, define, at Regulation 2, the word `decision'.  The definition includes `an order (other than an interlocutory order).'  In Casella London v. Banai [1990] ICR 215 the EAT held that a striking out order was an interlocutory order, relying on cases such as Salter Rex & Co v. Ghosh and on a note in the Supreme Court Practice 1988.  That case and that note have now been superceded by a new Rule of the Supreme Court, Order 59, Rule 1A(3), which reads as follows:-

`A judgment or order shall be treated as final if the entire cause or matter would (subject only to any possible appeal) have been finally determined whichever way the Court below had decided the issues before it.'

It seems clear to us that a decision on a preliminary issue, such as a time-limit, is not final in that sense because a Tribunal may decide that the case can go on (as indeed we did decide in this case).  If an order is not final it must be, we think, interlocutory.  So our so-called decision was not a decision, and cannot be the subject of a review.  We have no jurisdiction to hold a review in this case."

	Notices of Appeal both against that Decision and against the January Decision were filed with this Court and needs, so far as the January Decision is concerned, an extension of time.  It was that application for an extension of time that was refused by the learned Registrar.  The Appeal would be to me sitting alone but in the somewhat unusual circumstances of this case, where we really had a hybrid set of proceedings it was agreed with the parties that we sit as a full Tribunal.  The Decision therefore, on the Appeal from the learned Registrar, is also a Decision of the full Tribunal.  It is a re-hearing in the sense that a Judge in Chambers would be re-hearing a Decision of a Queen's Bench Master;  we therefore look at the whole of the evidence and we look at the correspondence, some of which, or most of which, was before the learned Registrar.

	There is however, one piece of evidence which is before us which was not before the learned Registrar.  That is contained in an affidavit of Miss Corinne Aldridge, who is a Solicitor with Wilde Sapte, who act for the Bank.  She swore an affidavit of recent date and she makes it quite clear, as indeed, I have already mentioned, that after the oral hearing on the 14th January she and Mr Crawford advised the Bank to appeal.  The reason for their not proceeding with an appeal was the invitation from the learned Chairman to seek a Review.  What then is the position so far as giving leave to appeal out of time.

	In normal circumstances, we, like industrial tribunals, are extremely strict and even one day out of time has been held sufficient to prevent the lodging of a Notice of Appeal.  The reason behind this is a matter of policy from the very start in industrial tribunals is that where industrial relations are concerned it is important, and indeed very important in the view of Industrial Members, that if you have a complaint you should air it and bring it;  you should not sit on it, because that can only allow matters to fester.  However, there are inevitably going to be exceptional cases and we are of the view that this was just such a case.

	The reason  -  we accept the evidence of Miss Aldridge, it was not sought to be cross examined - that the Notice of Appeal was not filed in connection with the January Decision, was that the learned Chairman had invited the Bank to apply for a Review.  They relied upon a perfectly genuine opinion of the learned Chairman, he thought that he had power to Review and it was not until the day of the Hearing, in May, that the point was rightly taken on jurisdiction.  It is our view therefore, that we are able to treat this as an exceptional situation and to extend the time for the Notice of Appeal against the January Decision.

	That being our Decision we next come to look at the May Decision because Mr Crawford submits that there was an error of law in that the Tribunal was wrong in deciding that it had no jurisdiction to Review that Order of January.  He puts his case in this way, that where you are challenging the authority of a tribunal to hear a case, and it is a statutory body, the determination of the issue of jurisdiction is a final order.  Secondly, he submitted that there was power here in a tribunal to recall the matter even if they could not review it.  So far as the issue of whether or not this was an Interlocutory Order, that matter, as the Tribunal pointed out, is in effect governed, or the guidance is so strong that it is in effect, governed by the provisions of the new Rule Order 59, Rule 1(a) and that Rule was set out in the Decision.  In so far as any authority can assist us in this matter we were helpfully referred to the case of White v. Brunton [1984] 1 QB 570, where the learned Master of the Rolls was considering some of the earlier authorities in a short judgment.  He drew the distinction being made in those authorities between what could be called the "Order" approach and the "Application" approach.  The Order approach looked only to the Order itself and whether it decided an issue, the Application approach looked at the Application or proceedings giving rise to the Order and not upon the Order itself.  He indicated there after a review of the authorities that it was clearly the Application approach that was persisting at that time in 1984.  He also indicated:
"I know that at the present time a great deal of thought is being devoted to how the problem can best be resolved by making rules of Court pursuant to the power conferred under the Supreme Court Act .... he did not underestimate the difficulties"

What he obviously knew at the time was that Order 59 Rule 1(a) was in embryo.  It is now a fact and the guidance is given by that sub-rule, which of course is the "application" approach.  We look therefore to see in the present case whether the Order in January disposed of the cause or matter whichever way the Court decided, in our judgment it clearly does not.  It was an Interlocutory Order and indeed we are somewhat supported in that view by a passage from the judgment of Lord Justice Diplock as he then was in Anisminic Ltd v. The Foreign Compensation Commission [1967] 2 AER 986, p.994, he referring to a Statutory Jurisdiction regarded it in this way he said:
"`Jurisdiction' is an expression which is used in a variety of senses and takes its colour from its context.  In the present appeal, as in most of the authorities which have been cited, we are concerned only with Statutory jurisdiction in the sense of an authority conferred by Statute on a person to determine, after inquiring into a case of a kind described in the statute conferring that authority and submitted to him for decision, whether or not there exists a situation, of a kind described in the statute, the existence of which is a condition precedent to a right or liability of an individual who is party to the inquiry, to which effect will or may be given by the executive branch of government."

Thus, clearly envisaged there was that jurisdiction is a preliminary condition procedure.  In our judgment here, the learned Chairman was entirely correct.

	So far as the power of recall is concerned, this Decision had clearly been signed and drawn up.  The power of recall is usually in the High Court and was referred to in the case of Re Harrison's Share under a Settlement [1955] 1 AER p.185.  We would only note that the Decision there of the Court of Appeal was that there was power in the Judge to recall an Order in the Chancery Division on his own initiative where it had not been perfected.  In the present case this Order so far as the Industrial Tribunal Rules are concerned had been perfected.  That matter was referred to shortly in a Judgment of this Court in Casella London Ltd v. Banai [1990] ICR 215 at p.221 A-C.  It follows therefore on both the points helpfully taken by Mr Crawford that we are against him and this Judgment in our view, was clearly correct and there was therefore no power to Review.  The whole Decision of the 20th May of this year was made without jurisdiction and is therefore a nullity.

	We therefore come to the last matter before us and that is what to do about the Decision of January 1991.  That Decision was reached on a false understanding of the law as indicated by the learned Chairman in those reasons.  He thought he was wrong in law, and it seems that in May they looked at the facts and reached a contrary conclusion.  However, that review of the facts was not one they were entitled to make and it seems to us therefore that the inevitable result of allowing the Appeal out of time and of finding and agreeing with the Tribunal that the Review was without jurisdiction this Decision in January must be set aside and the matter returned to another industrial tribunal or this industrial tribunal, as the learned Regional Chairman may decide, for a re-hearing on the issues of time and whether or not to allow it to be extended under the just and equitable cause. 

	Thus, one, the Appeal against the Decision of the learned Registrar of the 31st July 1991 is allowed and time extended so that the Notice of Appeal against the Decision of the 21st January 1991 is valid and in time.

	As to the Appeal against the Decision in May, the Review Decision, that Appeal is dismissed so that the finding that they had "no jurisdiction" stands, and as to the Appeal against the January Decision that is allowed and the matter remitted for a re-hearing or a further hearing.

	However the course of this appeal has taken a rather unusual turn because after we had thought that we had completed the judgment on the issues raised a completely fresh point has been put before us.  It arose out of the form of order that we were proposing after the first part of this judgment.

	The further point arises in this way:  On a further reading of all the documentation and having heard Mr Crawford, who appeared for the Bank at all these hearings it is now apparent to us that the Review Hearing in fact divided itself and that the first part of that Hearing was the Review Hearing but the second part was not part of any Review because the Tribunal decided that it had no jurisdiction to conduct a Review.  It is right as Mr Brown has pointed out, that at the very heading of the Decision of May there is the phrase "Review Hearing" but that has obviously been typed on in the office and we do not think that it alters the view that we now take of the proceedings.

	Going back to January, in order to explain the matter, it seems that what happened was this.  The Applicant's Counsel was putting his claim in two ways, they were alternative, first she was saying that the act complained fell within a period of three months prior to the date of the Originating Application but in the alternative, if she were wrong in that contention this was a case in which the Tribunal should exercise its discretion under subsection (6) of paragraph 68, of the Race Relations Act 1976, that subsection reads:
"A Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

That is a subsection with which we are all familiar and comes before Industrial Tribunals quite regularly.

	What happened, when one reads paragraph 3 of the January Decision is that the first part of that paragraph decides that the Applicant succeeds on Section 68(1) in that the act complained of was done within the period of 3 months, but then ends with this sentence, and I am now quoting:
"By agreement we left over a further alternative contention for the Applicant namely that even if the application were out of time it would be just and equitable to hear the application (section 68(6))."

It is apparent from that sentence, first that there was the alternative contention;  secondly, that that matter was being left over or adjourned and thirdly, that the Tribunal were well aware of the wording of Section 68(6).

	Turning to the Decision in May we note that it is put in two paragraphs first, that the Tribunal has no jurisdiction to review its Decision of the 22nd January 1991 but secondly and I am now quoting:
"The majority decision of the Tribunal, in an extension to the "Decision" dated 22 January 1991, is that the Applicant fails in his claim under Section 68(6) of the Race Relations Act 1976."

It is clear from that part of the Decision that the Tribunal felt that it was reaching a Decision which was "an extension" to the Decision dated 22nd January 1991.  That is further apparent when one looks at the full reasons given in May where the learned Chairman points out, at the end of paragraph 3 that they have no jurisdiction to hold a Review, and then he continues and I am quoting from paragraph 4, in the following way:
"When the Chairman had announced the above conclusion both parties asked the Tribunal to consider, by way of an addition to our `Decision' dated 22 January 1991, and in case that `decision' was wrong in upholding the Applicant's right to proceed under Section 68(1) of the Race Relations Act 1976, whether he could proceed under Section 68(6).  We agreed to do this, and we heard argument."

Thereafter the Tribunal examined the facts and held by a majority that they were not prepared to exercise discretion under that subsection and to extend the period of time and therefore to accept jurisdiction.

	Mr Brown has argued before us today by way of a cross-appeal that that part of the Decision of May was wrong in law and he has submitted that the Tribunal did not direct itself correctly in law in failing to refer specifically to the wording of subsection (6) and in particular to the phrase "in all the circumstances of the case" and "just and equitable" and he submits that there is some support for that criticism not only in the fact that the majority were concentrating on the advice being given to the Applicant by the Commission for Racial Equality but also that in his dissenting judgment one of the Members, Mr Barber had used the word "reasonable" and that that word "reasonable" did not appear in the subsection and he submitted that the precise test was not set out.  Mr Crawford, who was there, has emphasised that there was considerable argument and submissions and that that there was no doubt at all that this Decision was given at the specific request of the Applicant's advisor, a Member of the Bar, and we note that in the first Decision in January the wording of the subsection is clearly set out.  There is reference to the subsection in two places in the majority Decision and in the phraseology in which the issue is put.  We cannot but think that the phraseology is familiar not only to this experienced learned Chairman but also to the Members of that Tribunal.  This was a question of exercising their discretion, it was essentially a matter of fact, there was no suggestion that the facts found were erroneous and it follows therefore that we cannot accept the criticism made by Mr Brown.  We are grateful to him for the succinct way in which he has put the matter.

	What then is the ultimate result of our decisions today.  We allow Appeal against the Decision of the learned Registrar and we extend time for the Notice of Appeal in respect of the January Decision.  

	As to the May Decision that was in fact, two Decisions, one by way of Review and one by way of an adjourned Hearing from January.  We dismiss the Appeal against the refusal to review and we dismiss the Appeal against the finding of the adjourned issue.

	The January Decision must be set aside, the Appeal allowed and the matter remitted for a re-Hearing on the question of whether the application is in time under Section 68(1), that is what we feel is the right order but of course we will hear Counsel on any comments or suggestions about that matter.