Matheson v Mazars Solutions Ltd
| Jurisdiction | Scotland |
| Judgment Date | 22 April 2005 |
| Docket Number | No 34 |
| Date | 22 April 2005 |
| Court | Court of Session (Inner House - Extra Division) |
Extra Division
Employment Appeal Tribunal
Employment law - Process - Three-month time-limit for presenting claim to Employment Tribunal - Claim to be presented to Office of Tribunals or regional office - Whether Edinburgh a regional office of the Employment Tribunals - Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 (SI 2001/1170 (S 7), sch 1, r 23(3)
Words and phrases - "Regional Office of the Employment Tribunals" - Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 (SI 2001/1170 (S 7)), sch 1, r 23(3)
Rule 23(3) of sch 1 to the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 provides that an application instituting proceedings before the employment tribunal may be presented at the Office of the Tribunals or at any regional office of the Employment Tribunals.
A company terminated an employee's employment on 31 May 2002. The employee sought to lodge an application in respect of unfair dismissal. The last day of the period for lodging an application to the Employment Tribunal was 31 August 2002. The application was received by fax by the Edinburgh office of the Employment Tribunals on 31 August. It was then forwarded to the central office of the Employment Tribunals (Scotland) in Glasgow where it was received on 2 September. The Employment Tribunal held that the application was not timeously presented as Edinburgh was not a regional office, and that decision was upheld by the Employment Appeal Tribunal. The employee appealed to the Court of Session.
Held that: (1) the question of whether the Edinburgh office was a regional office of the Employment Tribunals involved construction of the legislation and was at least in part a finding in law (para 21); (2) the existence of a "Regional Chairman for Scotland" was of no assistance on that question (para 22); (3) since the president had not specified an area for a regional office in Scotland, offices established for sub-areas in Scotland were not regional offices of the Employment Tribunals (para 25); (4) therefore the application was not timeously presented (para 26); and appeal dismissed.
Stuart Matheson applied to an employment tribunal in respect of allegedly unfair dismissal. The employment tribunal held that the application had not been timeously presented.
The employee appealed to the Employment Appeal Tribunal which refused the appeal.
The employee thereafter appealed to the Court of Session.
Cases referred to:
Melville v Brown Bros and Co Ltd EAT/110/00, unreported
Textbooks etc. referred to:
Bennion, FAR, Statutory Interpretation: A code (4th ed, Butterworths, London, 2002), sec 142
Leslie, W, Employment Tribunal Practice in Scotland (2nd Looseleaf ed, W Green, Edinburgh, 1998), para 3.29
The cause called before an Extra Division, comprising Lord Macfadyen, Lady Cosgrove and Lord Cameron of Lochbroom, for a hearing on the summar roll.
At advising, on 22 April 2005, the opinion of the Court was delivered by Lord Macfadyen-
Opinion of the Court-
[1] This is an appeal from a judgment of the Employment Appeal Tribunal upholding a decision of an Employment Tribunal that the appellant's application had not been timeously presented.
[2] The appellant was continuously employed by Mazars Solutions Limited ('the respondents') from 13 October 1986 to 31 May 2002. The latter date was the effective date of termination of his employment. He presented an originating application complaining principally of unfair dismissal. In terms of sec 111(2)(a) of the Employment Rights Act 1996 (cap 18) an Employment Tribunal cannot consider such a complaint unless it is 'presented to the tribunal before the end of the period of three months beginning with the effective date of termination'. It was common ground between the parties that in the appellant's case 31 August 2002 was the last day of that period. The appellant's originating application was sent by fax to the Edinburgh office of the Employment Tribunals and received there on that date. From there, it was forwarded to the Central Office of the Employment Tribunals (Scotland) in Glasgow, where it was date-stamped as received there on 2 September 2002.
[3] The issue with which this appeal is concerned is whether, on a sound construction of the relevant regulations, the appellant's originating application is to be regarded as having been presented to the tribunal when it was received in the Edinburgh office on 31 August 2002, or only when it was received in the Central Office on 2 September 2002. The appeal proceeded on the basis that if the latter is the correct conclusion, the application was out of time, and by virtue of sec 111(2)(a) could not be considered by the tribunal; whereas if the former is the correct conclusion, the application was timeously presented to the tribunal when received in the Edinburgh office on 31 August 2002.
[4] It should be noted that, although the rigour of sec 111(2)(a) is mitigated by sec 111(2)(b), which permits the tribunal to extend the time for presentation where it is satisfied that compliance with the primary time limit was not reasonably practicable, the appellant's solicitor in the course of the hearing before the Employment Tribunal expressly disavowed any intention of relying on sec 111(2)(b), and that position was adhered to before the Employment Appeal Tribunal and in this court.
[5] It is convenient to begin by setting out the relevant parts of the Regulations which were in force at the material time, namely the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 ('the 2001 Regulations').
[6] Schedule 1 to the 2001 Regulations contained the Employment Tribunals Rules of Procedure (Scotland). Rule 1(1) provided as follows: 'Where proceedings are brought by an applicant, they shall be...
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