EAT entitled to refuse hearing
28 Jun 05
No automatic right to full hearing on allegation of error of law, says Inner House
The Employment Appeal Tribunal is entitled to refuse to allow a full hearing in respect of appeals which do not properly and relevantly focus a question of law, the Court of Session has ruled.
Lord Penrose, Lady Paton and Lord Clarke in the appeal court have refused an appeal by Indu Krishna, a teacher who alleged racial discrimination when employed by Argyll and Bute Council. Mrs Krishna had complained that an employment tribunal acted perversely in rejecting her application for excessive delay in pursuing it. On her appeal to the EAT, its deputy registrar considered that she had failed to identify an error in law.
She submitted revised notices of appeal on which the deputy registrar took the same view, and this was confirmed by the EAT judge when the papers were put before him.
Before the Court of Session Mrs Krishna argued that perversity was an error of law, and that having identified such an error in her grounds of appeal, she was entitled to a full appeal hearing. However the court held that the procedural rules, which Mrs Krishna did not challenge, involved the registrar scrutinising an appeal when lodged, and the opportunity to revise a notice considered not to contain a question of law. "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", said the court.
The court did not accept Mrs Krishna's contention that the procedure introduces an unauthorised "leave to appeal" requirement. "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 tribunal had adopted a proper procedure, said the court: "We do not consider that the procedural rules applied in this way were being applied in a manner inconsistent with the primary legislation."
"The EAT is entitled to send such an appeal to a full appeal hearing if it so wishes... 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."
The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2005csih52.html .