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APPEAL Connex
South Eastern Ltd v Bangs: [2005] EWCA Civ 14 CA:
Dame Elizabeth Butler-Sloss P, Mummery and Dyson LJJ: 27 January 2005 The
Employment Appeal Tribunal allowed an appeal by the employer from a tribunal decision
upholding the employee's complaint of race discrimination on the ground that the
decision was "unsafe" since a delay of one year in its promulgation
had led to errors and omissions in the findings of fact and reasoning. The
employee appealed. The Court of Appeal held:
It was clear
from section 21(1) of the Employment Tribunals Act 1996 that appeals from employment
tribunals were confined to questions of law, and it was not incompatible with
article 6 of the European Convention on Human Rights for domestic legislation
so to limit that right of appeal.
Unreasonable delay in promulgating the decision
of an employment tribunal was a matter of fact, not a question of law, and, while
it might result in a breach of article 6, giving rise to state liability to pay
compensation to the victim of the delay, it did not in itself constitute an independent
ground of appeal. Nor did any question of law arise, or independent ground of
appeal exist, simply because, by virtue of material factual errors and omissions
resulting from delay, the decision was "unsafe".
In exceptional
cases unreasonable delay by the tribunal in promulgating its decision could be
properly treated as a serious procedural error or material irregularity giving
rise to a question of law in the "proceedings before the tribunal";
such a case could occur where due to excessive delay there was a real risk that
a litigant had been deprived of the substance of his right to a fair trial under
article 6(1) of the Convention.
In the present case, there was ample material
from which the employment tribunal was entitled to infer that the employee had
been treated less favourably by the employer and, in the absence of a satisfactory
explanation for that conduct, that there was a racial reason for his treatment;
and the delay in promulgating the decision, while it ought not to have occurred,
had not created a real risk that the employer was deprived of the benefit of a
full and fair trial. The appeal was allowed. Appearances:
Adrienne Morgan (Simpson Millar) for the applicant; Daniel Matovu (Kennedys)
for the employer. |
