Petrofac Facilities Management Ltd v HM Inspector of Health and Safety
| Jurisdiction | Scotland |
| Judgment Date | 24 June 2021 |
| Docket Number | No 2 |
| Court | Court of Session (Inner House) |
[2021] CSIH 33
Second Division
Employment Appeal Tribunal
Baisley v South Lanarkshire Council [2017] ICR 365
Effort Shipping Co Ltd v Linden Management SA (‘The Giannis NK’) [1998] UKHL 1; [1998] AC 605; [1998] 2 WLR 206; [1998] 1 All ER 495; [1998] 1 Lloyd's Rep 337; [1998] CLC 374; 1998 AMC 1050; 95 (7) LSG 32; 148 NLJ 121; 142 SJLB 54; The Times, 29 January 1998; The Independent, 27 January 1998
Semple Cochrane plc v Hughes 2001 SLT 1121; 2001 SCLR 1081
Software Box Ltd v Gannon [2016] ICR 148
Process — Tribunal — Employment tribunal — Appeal against prohibition notice presented one day late — Whether appellant entitled to rely on general dispensing power to extend time to present appeal under r 5 — Whether general dispensing power excluded by specific provision for extension of time in appeal against prohibition notice under r 105(1) — Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237), sch 1, rr 5, 105(1)
Her Majesty's Inspector of Health and Safety issued a prohibition notice to Petrofac Facilities Management Ltd in terms of sec 22 of the Health and Safety at Work Act 1974 (cap 37), on 21 February 2019. Petrofac appealed to the employment tribunal under sec 24 of the 1974 Act. The ET held that the appeal was out of time in terms of r 105(1)(a) of sch 1 to Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, but permitted the appeal to proceed in terms of the dispensing power under r 5. Petrofac appealed to the Employment Appeal Tribunal.
At advising, on 10 March 2020, the EAT (Lord Summers sitting alone) overturned the decision of the ET and held that r 5 had no application (UKEATS/0044/19/SS and UKEATS/0045/19/SS). Petrofac appealed to the Court of Session.
Rule 2 of sch 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) (‘the Rules’) provides that the overriding objective of the Rules is to enable employment tribunals to deal with cases fairly and justly, including, so far as practicable, “(d) avoiding delay, so far as compatible with the proper consideration of the issues”. A tribunal shall seek to give effect to the overriding objective in interpreting or exercising any power given to it by the Rules. In terms of r 5, the tribunal may extend or shorten any time-limit specified in the Rules. Rule 105(1) further provides, in respect of appeals against improvement and prohibition notices, that an appellant may appeal by presenting a claim to a tribunal office “(a) before the end of the period of 21 days beginning with the date of the service on the appellant of the notice which is the subject of the appeal; or (b) within such further period as the Tribunal considers reasonable where it is satisfied that it was not reasonably practicable for an appeal to be presented within that time.”
The appellant presented a notice of appeal against a prohibition notice one day late. The employment tribunal (‘ET’) granted relief in terms of...
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