Mrs Indu Krishna V. Argyll & Bute Council And Others
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Clarke,Lord Penrose |
| Date | 24 June 2005 |
| Docket Number | XA39/04 |
| Court | Court of Session |
| Published date | 24 June 2005 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Penrose Lady Paton Lord Clarke
| XA39/04 OPINION OF THE COURT delivered by LADY PATON in APPEAL by MRS. INDU KRISHNA Appellant; against ARGYLL & BUTE COUNCIL and OTHERS Respondents; _______ |
Act: Napier, Q.C.; Bishops (Appellant)
Alt: Truscott, Q.C.; Balfour & Manson (Respondents)
24 June 2005
Appeals to the Employment Appeal Tribunal
[1]The appellant is a teacher. She claims to have suffered racial discrimination when in the employment of Argyll & Bute Council (the first respondents). She has lodged several complaints with employment tribunals. This case concerns the refusal in 2002 by the Employment Appeal Tribunal (the EAT) to entertain appeals in two of the complaints, numbers S/102273/97 and S/100223/00.
[2]Each appeal concerned a decision of an employment tribunal dated 21 August 2002 to strike out the complaint "for excessive delay in proceeding with it" in terms of rule 15(2)(e) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 (S.I. 2001 No.1170). In each case, the appellant maintains that the decision to strike out constituted an error of law in that it was a perverse decision which no reasonable tribunal would have reached in the circumstances. She further maintains that the EAT erred in rejecting her appeals at a preliminary stage, without a full appeal hearing.
Statutory framework applicable to appeals to the Employment Appeal Tribunal
[3]In 2002, the statutory framework setting out the procedure in appeals from an employment tribunal to the EAT comprised (i) section 21 of the Employment Tribunals Act 1996; (ii) The Employment Appeal Tribunal Rules 1993 as amended ("the 1993 Rules"); and (iii) practice guidance issued by the EAT in terms of paragraph 17(2) of Schedule 11 to the Employment Protection (Consolidation) Act 1978 and section 30(3) of the 1996 Act.
[4]Section 21: Section 21(1) of the Employment Tribunals Act 1996 provides:
"An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal under or by virtue of -
(c)the Race Relations Act 1976 ..."
[5]The 1993 Rules: The Employment Appeal Tribunal Rules 1993 (S.I. 1993 No.2854), as amended by The Employment Appeal Tribunal (Amendment) Rules 2001 (S.I. 2001 No.1128), were made by the Lord Chancellor, after consultation with the Lord President of the Court of Session, in the exercise of powers conferred by section 154(3) and paragraphs 17(1), 18, 18A(1) and 19(1) of Schedule 11 to the Employment Protection (Consolidation) Act 1978.
[6]Rule 3 of the 1993 Rules provides inter alia:
"(1)Every appeal to the Appeal Tribunal shall ... be instituted by serving on the Tribunal the following documents -
(a)a notice of appeal ... [and certain other documents] ...
(7)Where it appears to the Registrar that the grounds of appeal stated in the notice of appeal ... do not give the Appeal Tribunal jurisdiction to entertain the appeal, he shall notify the appellant ... accordingly informing him of the reasons for the opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the appeal.
(8)Where notification has been given under paragraph (7), the appellant ... may serve a fresh notice of appeal ... within the time remaining under paragraph (3) or (6) or within 28 days from the date on which the Registrar's notification was sent to him, whichever is the longer period ...
(10)Where an appellant ... expresses dissatisfaction in writing with the reasons given by the Registrar, under paragraph (7), for his opinion that the grounds of appeal stated in a notice ... do not give the Appeal Tribunal jurisdiction to entertain the appeal, the Registrar shall place the papers before the President or a judge for his direction as to whether any further action should be taken on the appeal."
[7]Practice guidance: Paragraph 2(5) of the Practice Direction of 1996 ([1996] I.C.R. 422), provides:
"It is not acceptable for an appellant to state as a ground of appeal simply that 'the decision was contrary to the evidence' or that 'there was no evidence to support the decision' or that 'the decision was one that no reasonable tribunal could have reached and was perverse' or similar general grounds, unless the notice of appeal also sets out full and sufficient particulars of the matters relied on in support of those general grounds."
The procedure followed in the appeals
[8]The appellant's two notices of appeal dated 27 September 2002 were lodged timeously with the EAT. Each notice contained a ground of appeal A, stating that the decision to dismiss the appellant's application was one which no reasonable employment tribunal, properly directing itself, would have reached. Additional grounds B to H were introduced by a general submission that the tribunal had misapplied or misconstrued the test for determining whether or not there had been a want of prosecution on the appellant's part, in that it had "failed to identify an inordinate delay or delays which was or were also unreasonable". There followed discrete criticisms that, for example, the tribunal had failed to have sufficient regard to delays caused by the respondents, and the tribunal had drawn an unjustified adverse inference from the fact that the appellant was being represented by her fourth solicitor.
[9]In terms of rule 3(7), the notices of appeal were considered by the deputy registrar of the EAT. By letter dated 14 November 2002, the deputy registrar wrote to the appellant's agents inter alia as follows:
" ... In my opinion, your notice of appeal does not identify an error in law but merely seeks to challenge a question of fact which is a discretionary matter solely for the Employment Tribunal to determine.
The chairman took into account all the facts presented in the submissions by both parties and concluded, having applied the correct legal test, that there had been an excessive delay in proceeding with the applications. I can see nothing to suggest that the chairman has fallen into a material error in the exercise of his discretion which would show that the decision was perverse.
For the above reasons I have to tell you that the Appeal Tribunal does not have jurisdiction to entertain the appeal and that in accordance with rule 3(7) of the Employment Appeal Tribunal Rules (Amendment) 2001, no further action will be taken on it. Your attention is drawn to rules 3(8) and 3(10) of the EAT rules."
[10]On 11 December 2002, in terms of rule 3(8), the appellant submitted revised notices of appeal. The appellant further requested that, if the deputy registrar was still of the view that the appeals should not be entertained, both cases should be put before the EAT judge in terms of rule 3(10).
[11]Each revised notice of appeal contained an enhanced ground A, in the following terms:
"A. The decision to dismiss this application was one which no employment tribunal, properly directing itself, could have reached. The decision was accordingly perverse, having regard to the test set out in Stewart v. Cleveland Guest (Engineering) Ltd. [1994] I.R.L.R. 440. For the avoidance of doubt it is the appellant's position that where the ground of appeal is (as it is here) that the tribunal's decision represents an untenable interpretation of facts presented to it, that allegation is of itself sufficient to constitute an appeal on a question of law. Accordingly, the appellant is entitled to have this ground of appeal heard by the Employment Appeal Tribunal, having regard to section 21 of the Employment Tribunals Act 1996."
[12]Each revised notice of appeal also contained grounds B to H. Ground B set out the second main submission in the following terms:
"B. The tribunal misapplied or misconstrued the test for ordering an application to be struck out for excessive delay in proceeding with it. In terms of rule 15(2)(e) of Schedule 1 to the Employment Tribunals (Constitution etc.) (Scotland) Regulations 2001, the tribunal is entitled to order an originating application to be struck out "for excessive delay in proceeding with it". Having regard to the principles set out by the House of Lords in Birkett v. James [1978] A.C. 297, there is a requirement that the tribunal identify (a) that there is inordinate or inexcusable delay on the part of the applicant and (b) that there [is] a substantial risk that it is not possible to have a fair trial or that there would be serious prejudice to the respondent. Here the tribunal did not identify any or sufficient facts pointing to inordinate or inexcusable delay on the part of the applicant ..."
[13]In each notice of appeal there followed grounds C to H, focusing on particular manifestations of the failure outlined in ground B. In case S/102273/97, it was said that the tribunal had no or inadequate regard to the appellant's attempts to progress matters, to the lack of direction from the EAT itself, and to delays caused by the respondents. Further, the tribunal had drawn an unjustified adverse inference from the fact that the appellant was being represented by her fourth solicitor; the tribunal had miscalculated one period of delay (for lodging a record) by referring to a time-limit of 14 days when four weeks had been allowed; and the tribunal had made an unjustified and unreasonable assumption that teaching staff would have moved from their original posts. In case S/100223/00, it was said that the tribunal failed to have regard to its own failure to ensure that proceedings were dealt with expeditiously; the tribunal failed to have regard or adequate regard to delays caused by the respondents; the tribunal drew an unreasonable and inequitable inference from the appellant's apparent uncertainty in relation to the position and/or progress of an alleged internal grievance procedure; the tribunal failed to give consideration or proper...
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