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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Krishna v. Argyll & Bute Council & Ors [2005] ScotCS CSIH_52 (24 June 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_52.html Cite as: [2005] CSIH 52, [2005] ScotCS CSIH_52 |
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Krishna v. Argyll & Bute Council & Ors [2005] ScotCS CSIH_52 (24 June 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Penrose Lady Paton Lord Clarke
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[2005CSIH52] 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 ..."
"(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."
"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."
"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] IRLR 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."
"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 ..."
"In my opinion, your [fresh] notice of appeal does not identify any new errors in law ...
As requested, as a result of my opinion, all the relevant papers were placed before Lord Johnston, the Employment Appeal Tribunal judge, for his consideration, in accordance with rule 3(10) of the Employment Appeal Tribunal (Amendment) Rules 2001, and being of the opinion that the deputy registrar's decision was correct, in his view, there are no new points of law. The employment tribunal had a discretion and exercised it reasonably, therefore no further action should be taken on the appeal ..."
Further appeal to the Court of Session
[16] The appellant objected to the rejection of her appeals without having had the opportunity to present her arguments before the EAT at a full appeal hearing. She wished to appeal the EAT's decision of 17 December 2002.
[17] At that stage, in the light of certain observations by Lord Cameron in Mackenzie, petitioner, 2 August 1999 (unreported), the appellant's advisers considered that it was not possible to appeal. Resort was therefore had to judicial review in the Court of Session. However in July 2003 the appellant's petition for judicial review was dismissed as incompetent, on the basis that the avenue of statutory appeal had not been exhausted: Krishna, petitioner, 22 July 2003 (unreported, Lady Smith). The appellant's advisers then concluded that the appropriate way forward was an appeal to the Court of Session in terms of section 37(1) of the Employment Tribunals Act 1996. On 24 November 2003, the Employment Appeal Tribunal refused the appellant leave to appeal to the Court of Session. On 9 June 2004, the appellant sought leave from the Court of Session. Leave was granted. The matter came before this Extra Division on 6 May 2005.Submissions for the appellant
[18] Senior counsel for the appellant submitted that the only question before the court was whether the EAT's decision of 17 December 2002 refusing to entertain the revised notices of appeal was erroneous. He submitted that the decision was indeed erroneous, and should be overturned. The cases would then go to a hearing before the EAT, in the form of appeals from the tribunal. [19] Counsel submitted that the notices of appeal satisfied the necessary requirements and should have been entertained by the EAT. The relevant primary legislation was section 21 of the Employment Tribunals Act 1996. In terms of that section, all that was required was identification of a question of law. If such a question was identified, and if there was no other objection to the validity of the notice of appeal, the EAT had no discretion to refuse to entertain the appeal. That position was to be contrasted with appeals from the EAT to the Inner House of the Court of Session, where section 37 of the 1996 Act provided that appeals could be taken only on a question of law with the leave of either the EAT or the relevant appeal court. Leave would be granted only where there was probabilis causa and a genuine point of law of some importance. No such leave was required in an appeal from the tribunal to the EAT in terms of section 21. Counsel further submitted that, if Parliament had intended to empower the EAT to carry out an initial sifting of appeals prior to fixing an appeal hearing, Parliament would have imposed a "leave to appeal" requirement. [20] Counsel then referred to each notice of appeal, and in particular to grounds of appeal A and B (the latter as further elaborated by grounds C to H). "Perversity" was an error of law. An error of law would also occur if the tribunal misdirected itself as to the test to apply when looking for perversity. Reference was made to Melon v. Hector Powe Ltd., 1980 S.C. 188, at page 198 (Lord President Emslie) and 1981 I.C.R. 43, at page 48 (Lord Fraser of Tullybelton); and to McGregor v. Intercity East Coast Limited, 1998 S.C. 440, at page 443 (Lord Penrose). Where an appellant succeeded in demonstrating to the EAT that there was a misdirection in law, or a decision which no reasonable tribunal would reach, an appeal should be allowed. In her notices of appeal, the appellant offered to establish those matters. She offered to establish that the tribunal's exercise of its discretion by dismissing the cases for excessive delay in terms of rule 15(2)(e) was an exercise of discretion which no reasonable tribunal would have made. While the appellant had a difficult hill to climb, the steepness of the hill was no reason for denying her the opportunity to proceed. A mere practice direction concerning the setting out of full particulars in the notice of appeal could not detract from the provisions in the primary legislation. In any event, the notices of appeal in the present case contained more than a mere bald statement of perversity. [21] Counsel pointed out that a previous notice of appeal by the current appellant, which identified a similar alleged error of law, had been sent to a full appeal hearing: Krishna v. Argyll & Bute Council and another, 14 September 1999, EAT/446/99. That was the correct approach. [22] Counsel confirmed that the logical conclusion of his submission was that a notice of appeal which (a) stated in terms that there had been an error of law and (b) identified the alleged error of law, could never be excluded from a full appeal hearing. He submitted that, standing the terms of the primary legislation, the appellant was entitled to have such an appeal hearing, at which the reasons underlying the delays could be explored. Any assessment by the registrar or the EAT judge, prior to a full appeal hearing, was in effect a pre-judging of the very issue to be argued at the appeal hearing. While the deputy registrar had provided a reasoned response in his letters dated 14 November and 19 December 2002, the very matters referred to in his letters were the matters which the appellant was entitled to argue in a full appeal hearing. The appellant had in effect been denied the opportunity of an appeal hearing in the EAT on the question of perversity. [23] In answer to questions from the court, counsel confirmed that his submission was that the appellant was being made to face two hurdles (the deputy registrar and the EAT) when there should be only one (the EAT). On one view, the 1993 Rules introduced an unauthorised "leave to appeal" procedure when the primary legislation contained no such requirement. Counsel also confirmed that no attack was made on the validity or the vires of the 1993 Rules.Submissions for the respondents
[24] Senior counsel for the respondents opposed the appeal. The test to be met when establishing perversity was a high one: Mummery J. in Stewart v. Cleveland Guest (Engineering) Ltd. [1994] IRLR 440, at paragraph 33; and Yeboah v. Crofton [2002] IRLR 634, at paragraphs 92 to 94. Moreover paragraph 2(5) of the Practice Direction of 1996 required that the notice of appeal set out a relevant case. That Practice Direction had been issued in response to a recurring problem, namely the submission of a notice of appeal stating simply that a decision was "perverse", with very little further specification. Against that background it could not be correct that a mere assertion that a decision was perverse entitled an appellant to an appeal hearing. [25] So far as the second ground of appeal was concerned - namely that the tribunal had not identified any or sufficient facts pointing to inordinate or inexcusable delay on the part of the appellant - "insufficient facts" did not come up to the test for perversity. Accordingly the appellant had to peril her case on a failure by the tribunal to identify any facts pointing to inordinate or excessive delay on her part. But as could be seen from the tribunal's decision, the tribunal had identified relevant delays at various stages in both cases. [26] Turning first to case number S/102273/97, counsel tendered a typed chronology setting out the stages in procedure. By 4 September 1998 productions had been lodged and pleadings completed: yet nothing happened for over a year, until October 1999 when the tribunal wrote to parties enquiring about further procedure. On 7 November 2000 the appellant's solicitor refused to conjoin the cases, and undertook that the appellant would, by 30 November 2000, provide additional information which she had been requested to give following a hearing on 4 February 2000. That information was not provided by the due date; the appellant's solicitor then resigned on 5 February 2001; and a hearing for directions fixed for 26 February 2001 had to be postponed at the request of the appellant until 14 May 2001. Those were only some of the events causing delays. On any view, the tribunal could not be said to have failed to identify any facts amounting to excessive delay on the part of the appellant. [27] Grounds of appeal C to E focused on the adequacy of the facts supporting the tribunal's view. That was more a matter of sufficiency than perversity. Ground of appeal F was not fairly stated, as the tribunal in its decision at page 13 lines 1 to 4 set out exactly what it made of the changes in the appellant's representation. Ground of appeal G (relating to a time-limit of 14 days when four weeks had been allowed) was a factual matter capable of review. It did not support a perversity argument. Also the point should have been raised at the time of the decision. Ground of appeal H (relating to an assumption that staff would have moved on) had to be viewed against the background of events said to have begun in 1994 albeit ending in October 1999. It was not enough in such circumstances to say that the assumption was unjustified and unreasonable, and in any event such an assertion could not sustain an argument of perversity. [28] In relation to the second case number S/100223/00, counsel submitted that the procedural history was shorter, but demonstrated complete inactivity. Ground of appeal C (the tribunal's own alleged failure to ensure that proceedings were dealt with expeditiously) had not been insisted upon in argument. Grounds of appeal D and F focused on the adequacy of facts supporting the tribunal's view, which was more a matter of sufficiency than perversity. Ground of appeal G (relating to an assumption that no hearing would take place before 2003) did not disclose an error as such, but even if it did, it was not significant in that any hearing would at best have taken place in late 2002: again therefore there was no adequate basis for a perversity argument. Ground of appeal H (relating to an assumption that staff might have moved on) had to be viewed on the basis of the fact that the course of conduct ended in October 1999. [29] Counsel submitted that the procedure adopted had correctly dealt with both cases. In terms of the 1993 Rules, the EAT judge had considered the notices of appeal, had applied the correct test, and had ruled that the cases did not come up to the test. Appeals were allowed only on questions of law, including alleged perversity. The rules provided a mechanism for sifting, as it were, and for removing cases which did not on their face identify a question of law. Perversity was a difficult ground to sustain. Nothing in the revised notices of appeal amounted to a sustainable appeal on the ground of perversity. Where no error of law was properly identified in the notices of appeal, the EAT was obliged to dismiss the appeals. The EAT had not erred. The present appeal should be dismissed.Reply for the appellant
[30] Senior counsel confirmed that no challenge was made to the legality or vires of the 1993 Rules. However the rules should be read in a way which was compliant with the primary legislation. The rules should not be read in such a way that jurisdiction on the question of a point of law was given to someone without legal training. Mr. Truscott for the respondents had presented arguments on the merits: but those were matters to be argued at the appeal hearing. The issues raised were not to be decided on the basis of a paper exercise without a full appeal hearing.Decision
[31] Section 21 of the Employment Tribunals Act 1996 provides an avenue of appeal to the EAT from a decision of an employment tribunal. Leave to appeal is not required, but the jurisdiction of the EAT is restricted to questions of law. [32] The procedure in any appeal is governed by (i) the primary legislation, namely section 21 of the Employment Tribunals Act 1996; (ii) 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. [33] It is of some importance that, in the appeal before us, no challenge was made to the legality or vires of the 1993 Rules. It was accepted that they should govern procedure, although it was emphasised that they should be read in a way which was compliant with the primary legislation. [34] In terms of rule 3(1) of the 1993 Rules, an appeal is "instituted" when a notice of appeal is served on the EAT. Thus in our view an appeal comes into existence as soon as a timeous notice of appeal is received at the offices of the EAT: cf. the views expressed in paragraph [10] of Krishna, petitioner, cit. sup. [35] The appeal is then processed by staff at the EAT, including the registrar, who is authorised in terms of rule 2 of the 1993 Rules to act on behalf of the EAT. Inter alia, the appeal is subjected to an initial procedure, to ensure that only those appeals concerning questions of law are permitted to proceed to the next stage of the appeal procedure, namely a full hearing before the EAT judge sitting with lay members. In terms of rule 3(7), the initial scrutiny is carried out by the registrar or his deputy. If a notice of appeal is rejected at that stage as failing properly to focus a question of law, rule 3(8) gives the appellant an opportunity to submit a revised notice of appeal. In terms of rule 3(10) the appellant may also request that the revised notice of appeal be placed before the EAT judge "for his direction as to whether any further action should be taken on the appeal". When assessing the appeal at those early stages, both the registrar and the EAT judge must bear in mind any practice direction then applicable, such as the Practice Direction of 1996, quoted in paragraph [7] above. [36] Against that statutory framework, we are unable to accept the arguments advanced by senior counsel for the appellant. [37] We do not accept senior counsel's submission that any notice of appeal which in its terms refers to an "error of law", identified as (for example) "perversity", with some further specification, automatically entitles the appellant to a full appeal hearing before the EAT judge sitting with lay members. On the contrary, on a proper construction of section 21, the 1993 Rules, and the Practice Direction of 1996, the EAT is in our view entitled to refuse to allow a full hearing in respect of appeals which do not properly and relevantly focus a question of law. The appellant is then given an opportunity to revise the notice of appeal. But thereafter, any notice of appeal which fails to meet the requirements imposed by the statutory framework may be rejected as falling outwith the EAT's jurisdiction - such rejection being in effect a decision or order of the EAT at an early stage of the appeal procedure: cf. paragraphs [10] and [24] to [33] in Krishna, petitioner, cit. sup. [38] It will be seen therefore that we do not agree with the approach to the EAT appeal procedure adopted in Mackenzie, petitioner, cit. sup. Nor do we accept the appellant's contention that the procedure introduces an unauthorised "leave to appeal" requirement. As noted in paragraph [34] above, in terms of rule 3(1), the appeal is "instituted" and comes into existence as soon as a timeous notice of appeal arrives at the offices of the EAT. Consideration of the appeal itself commences as soon as the notice of appeal is received and is processed by the EAT staff and the EAT judge in accordance with the statutory framework. The wording of rule 3(10) - quoted in paragraph [6] above - expressly recognises that the appeal is in existence and is being processed through various stages. [39] In the present case, the appellant's two appeals were instituted by the timeous serving of notices of appeal upon the EAT. The two appeals were then processed as described in paragraphs [8] to [15] above. In particular, in terms of rule 3(10), the EAT judge considered the revised notices of appeal in order to decide "whether any further action should be taken on the appeal". He judged that the notices of appeal contained no questions of law, and duly issued his decision of 17 December 2002. In our view, on a proper construction of section 21 of the Employment Tribunals Act 1996, the 1993 Rules, and the Practice Direction of 1996, the procedure adopted cannot be criticised on either procedural or jurisdictional grounds. We do not consider that the procedural rules applied in this way were being applied in a manner inconsistent with the primary legislation. [40] We should add that the proper construction outlined in paragraph [37] above does not mean that the EAT could never fix a full appeal hearing in relation to a dubious notice of appeal. The EAT is entitled to send such an appeal to a full appeal hearing if it so wishes (as was done in Krishna, EAT/446/99). But the EAT is not obliged to allow a full appeal hearing in circumstances where a notice of appeal is adjudged in terms of rule 3 as failing to meet the requirements set by the statutory framework, and in particular, as failing properly to focus a question of law. [41] In view of the arguments presented by counsel for the respondents, and bearing in mind that leave to appeal to the Court of Session was granted without any restriction, it may be appropriate that we give a view on the merits of the EAT's decision of 17 December 2002. [42] We agree with the EAT judge that the revised notices of appeal contained no question of law. The test of perversity is a high one: Stewart v. Cleveland [1994] IRLR 440 at paragraph 33; Yeboah v. Crofton [2002] IRLR 634 paragraphs 92-94. In our view, the facts outlined in the notices of appeal do not, either individually or cumulatively, demonstrate perversity on the part of the employment tribunal. [43] The appellant's further complaint that the employment tribunal "did not identify any or sufficient facts pointing to inordinate or inexcusable delay on the part of the applicant" is in our view equally unfounded. As Lord Johnston pointed out in Krishna, EAT/446/99 in paragraphs 10 and 11:"10. ... the question [of excessive delay in proceeding with an appeal] is a discretionary one for the lower tribunal, and only to be attacked successfully [before the EAT] if it can be shown to be perverse in the sense that the discretion was wrongly exercised in law, whether by taking into account factors that should have been left out of account, leaving out of account factors that should have been taken into account, or at the end of the day its decision could be categorised as plainly wrong (The County Council of Hereford and Worcester v. Neale [1986] I.R.L.R. 168).
11. In these circumstances, the question for us is not whether we would decide the issue differently, but rather whether the tribunal below has fallen into a material error in the exercise of its discretion so as to vitiate its decision on the grounds of perversity".
