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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Matheson, Re An Order And Judgment Of The Employment Appeal Tribunal [2005] ScotCS CSIH_35 (22 April 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_35.html Cite as: [2005] ScotCS CSIH_35, 2005 GWD 14-246, 2005 SLT 457, 2005 1 SC 420, [2005] CSIH 35 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord MacfadyenLady Cosgrove Lord Cameron of Lochbroom |
[2005CSIH35] XA25/04 |
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OPINION OF THE COURT delivered by LORD MACFADYEN in APPEAL TO THE COURT OF SESSION under Section 37(1) of the Employment Tribunals Act 1996 by STUART MATHESON, Appellant; against An Order and Judgment of the Employment Appeal Tribunal. ______ |
Act: Napier, Q.C.; Brodies (Appellant)
Alt: Hardman; Semple Fraser (Respondents)
22 April 2005
Introduction
[1] This is an appeal from a judgment of the Employment Appeal Tribunal upholding a decision of an Employment Tribunal that the appellant's application had not been timeously presented. [2] The appellant was continuously employed by Mazars Solutions Limited ("the respondents") from 13 October 1986 to 31 May 2002. The latter date was the effective date of termination of his employment. He presented an originating application complaining principally of unfair dismissal. In terms of section 111(2)(a) of the Employment Rights Act 1996 an Employment Tribunal cannot consider such a complaint unless it is "presented to the tribunal ... before the end of the period of three months beginning with the effective date of termination". It was common ground between the parties that in the appellant's case 31 August 2002 was the last day of that period. The appellant's originating application was sent by fax to the Edinburgh office of the Employment Tribunals and received there on that date. From there, it was forwarded to the Central Office of the Employment Tribunals (Scotland) in Glasgow, where it was date-stamped as received there on 2 September 2002. [3] The issue with which this appeal is concerned is whether, on a sound construction of the relevant regulations, the appellant's originating application is to be regarded as having been presented to the Tribunal when it was received in the Edinburgh office on 31 August 2002, or only when it was received in the Central Office on 2 September 2002. The appeal proceeded on the basis that if the latter is the correct conclusion, the application was out of time, and by virtue of section 111 (2)(a) could not be considered by the Tribunal; whereas if the former is the correct conclusion, the application was timeously presented to the Tribunal when received in the Edinburgh office on 31 August 2002. [4] It should be noted that, although the rigour of section 111(2)(a) is mitigated by section 111(2)(b), which permits the Tribunal to extend the time for presentation where it is satisfied that compliance with the primary time limit was not reasonably practicable, the appellant's solicitor in the course of the hearing before the Employment Tribunal expressly disavowed any intention of relying on section 111(2)(b), and that position was adhered to before the Employment Appeal Tribunal and in this court.The Regulations
[5] It is convenient to begin by setting out the relevant parts of the Regulations which were in force at the material time, namely the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 ("the 2001 Regulations"). [6] Schedule 1 to the 2001 Regulations contained the Employment Tribunals Rules of Procedure (Scotland). Rule 1(1) provided as follows:|
"Where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application ..." |
Rule 23(3) is in the following terms:
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"An originating application may be presented at the Office of the Tribunals or at any Regional Office of the Employment Tribunals." |
(1) "the Office of the Tribunals" is defined as meaning the Central Office of the Employment Tribunals (Scotland). That office is situated in Glasgow, and is the office to which the appellant's originating application was forwarded from the Edinburgh office and in which it was received on 2 September 2002.
(2) "Regional Office of the Employment Tribunals" is defined as meaning "a regional office which has been established under the Office of the Tribunals for an area specified by the President [of the Employment Tribunals (Scotland)] or an office established for an area within such an area". Shortly stated, the issue in this appeal is whether the Edinburgh office falls within that definition, so that the faxing of the appellant's originating application to that office on 31 August 2002 can be regarded as the presentation of that application at a Regional Office of the Employment Tribunals, thus achieving compliance both with the requirement of rule 23(3) and with the time limit set by section 111(2)(a).
[8] These are the definitions which bear directly on the construction of rule 23(3), but it is convenient, in order to understand the argument advanced on the appellant's behalf, to note also the definition of "Regional Chairman" given in regulation 2(1), which is "a member of the panel of chairmen who has been appointed to the position of Regional Chairman in accordance with regulation 8(1) ...". Regulation 8(1) provides:|
"The Lord President [of the Court of Session] may from time to time appoint Regional Chairmen from the panel of chairmen and each Regional Chairman shall be responsible for the administration of justice by tribunals in the area specified by the President [of the Employment Tribunals (Scotland)] in relation to him." |
The Employment Tribunal decision
[9] The Employment Tribunal reached the conclusion that the Edinburgh office is not a Regional Office (Decision, page 5, line 26). It did so after pointing out that, while the relevant provisions of the 2001 Regulations mirror the corresponding regulations for England and Wales, in England and Wales a number of regions have been established, whereas in Scotland there are none. They rejected the submission that the whole of Scotland could be regarded as an area specified by the President. While recognising that from time to time a Regional Chairman had been appointed in Scotland, they were satisfied that no Regional Office as such had been established, and no area of Scotland had been specified in the way contemplated in the definition of "Regional Office of the Employment Tribunals" in paragraph 2 of the 2001 Regulations.The Employment Appeal Tribunal judgment
[10] The Employment Appeal Tribunal dismissed the appeal from the Employment Tribunal. Having set out the provisions of rule 23(3), the definition of "Regional Office of the Employment Tribunals" given in regulation 2(1), and the terms of regulation 8(1), Lord Johnston said:"8. There is undoubtedly a construction problem by reason of the fact that Rule 23(3) is simply lifted from the English Rules without reference to the fact that there is only one Regional Chairman in Scotland and he is appointed for the whole region (sic). We do not consider that such an employment (sic; sc appointment) is invalid. We therefore do not consider that it is possible to interpret or extend Rule 23(3) to include the Edinburgh area office. The phrase "or any Regional Office of the Employment Tribunals" should not be in the Regulation and has no relevance to Scotland. There are Regional Offices established in England within the knowledge of this Tribunal.
9. We therefore conclude the Tribunal came to a conclusion that correctly interpreted the legislation against the background of the admitted facts."
The appellant's submissions
[12] Mr Napier, who appeared before us for the appellant, submitted that both the Employment Tribunal and the Employment Appeal Tribunal had reached the wrong conclusion on the construction of rule 23(3) in the light of the definitions contained in regulation 2(1). On a sound construction of the definition of "Regional Office of the Employment Tribunals", the Edinburgh office was to be regarded as a Regional Office. It followed that, when the appellant's originating application was received by fax at the Edinburgh office on 31 August 2002, there was compliance with rule 23(3). That was done within the time limit set by section 111(2)(a). The application therefore required to be considered on its merits by the Employment Tribunal. [13] Under reference to paragraph 8 of the Employment Appeal Tribunal's judgment, Mr Napier pointed to the fact that Lord Johnston noted that there was one Regional Chairman in Scotland and that he was "appointed for the whole region". He pointed further to Lord Johnston's observation that that appointment was valid. It followed from these considerations, he submitted, that the "area specified by the President" as the area of the Regional Chairman's responsibility in terms of Regulation 8(1) must be the whole of Scotland. He submitted that Lord Johnston did not explain why that led the Employment Appeal Tribunal to the conclusion that it was impossible to interpret or extend the definition of Regional Office to include the Edinburgh office. The view expressed by Lord Johnston that the reference in rule 23(3) to a Regional Office had no place in the Scottish Regulations appeared to have been adopted from the passage in Leslie, Employment Tribunal Practice in Scotland, paragraph 3.29, quoted by the Employment Tribunal in its decision at page 5, line 10. [14] Mr Napier submitted that the 2001 Regulations should be construed against the background of the earlier Regulations which they replaced. In the Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993, and the corresponding English regulations, the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 ("the 1993 Regulations"), the definition of "Regional Office of the Industrial Tribunals" was "a regional office which has been established under the Office of the Tribunals for an area specified by the President". In both sets of regulations, rule 20(2) of Schedule 1 required all notices and documents to be presented at the Office of the Tribunals or such other office as might be notified by the Secretary to the parties. The effect was that in each jurisdiction, an originating application had to be presented to the Office of the Tribunals, although the Secretary might nominate another office for receipt of later notices and documents. In 1996 the 1993 Regulations were amended by the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1996 and the Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1996 ("the 1996 Regulations"). The English 1996 Regulations amended rule 20(2) to enable an originating application to be presented either at the Office of the Tribunals or at "any Regional Office of the Industrial Tribunals". The Scottish 1996 Regulations made no such alteration. While that situation prevailed, Melville v Brown Brothers and Co. Ltd (EAT/110/00) was decided. In that case it was held that, on the basis of the regulations as they then stood, an originating application could not be presented at the Edinburgh office. The 2001 Regulations, in both jurisdictions, amended the definition of Regional Office of Employment Tribunals to add the phrase "or an office established for an area within such an area". So far as England was concerned, the 2001 Regulations thus carried on a process of relaxation of the requirements as to the place at which an originating application had to be presented. Having at first in 1993 permitted presentation only at the Office of the Tribunals, they had in 1996 permitted presentation at any Regional Office as then defined, and in 2001 they had permitted presentation at any office established for an area within an area specified for a Regional Office. On the construction of the Regulations preferred by the Tribunals, Scottish applicants lost the benefit of the latter stage of relaxation because there was no designation of areas for regional offices in Scotland. [15] Mr Napier submitted that the fact that a Regional Chairman was appointed whose area was the whole of Scotland was helpful to his argument in the present case. It showed that an area specified by the President could be the whole of Scotland. In the definition of "Regional Office of the Employment Tribunals" one element was the phrase "regional office". That phrase in the definition was simply descriptive. The word "regional" simply connoted that the office was to be for a relatively large area. The office was to be established under the Office of the Tribunals. The definition did not require that it be established by the President. The President's role was in specifying the area. The last phrase in the definition indicated that offices established for smaller areas within the larger area specified by the President were to have the status of being a "Regional Office of the Employment Tribunals". [16] An alternative to the construction contended for by the appellant was that, as held by the Tribunals, the reference to regional offices in the Scottish regulations was to be taken to be a mistake, something done per incuriam, overlooking the fact that for the purpose of Employment Tribunals, Scotland, unlike England and Wales, was not divided into regions. Under reference to Bennion, Statutory Interpretation, section 142, Mr Napier submitted that that was a construction of last resort. [17] Mr Napier drew our attention to the regulations which have superseded the 2001 Regulations. They are the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 ("the 2004 Regulations"). They apply both in England and Wales and in Scotland. Rule 1(1) of Schedule 1 requires a claim to be presented in writing to "an Employment Tribunal Office". Regulation 2 defines an "Employment Tribunal Office" as "any office which has been established for any area in either England and Wales or Scotland specified by the President and which carries out administrative functions in support of functions being carried out by a tribunal or chairman ...". The concept of the Regional Office of Employment Tribunals has thus disappeared. [18] Although Mr Napier did not maintain the argument based on Article 6 of the European Convention on Human Rights which had been advanced before the Employment Appeal Tribunal, a vestige of that argument remained as his final submission. It was that, if his primary submission that the construction of the 2001 Regulations was clear in his favour was not accepted, and ambiguity was present, the fundamental importance of the right of access to the courts was a consideration which should be taken into account in resolving any ambiguity in favour of the appellant.The respondents' submissions
[19] Mr Hardman, for the respondents, submitted that the Employment Appeal Tribunal and the Employment Tribunal had come to the correct conclusion for the reasons which they gave. He sought to rely on their reasoning, with one exception. The exception was Lord Johnston's suggestion that the reference to Regional Offices should not have been present in the Scottish Regulations, and was of no relevance in Scotland. Mr Hardman, perhaps recognising the force of the point made by Mr Napier by reference to Bennion, submitted that the reference to Regional Offices could be understood as merely leaving the way open for the establishment of such offices in Scotland, although, on his submission, there were none at the material time. [20] Mr Hardman drew attention to the fact that this appeal proceeds under section 37(1) of the Employment Tribunals Act 1996, and is therefore confined to questions of law. It followed, he submitted, that the appeal required to proceed on the basis of the facts as found by the Employment Tribunal. He submitted that the sentence at page 4, line 39, of the Employment Tribunal's decision: "In Scotland there are none" (i.e. no regions) was a finding in fact, albeit it was based on judicial knowledge rather than evidence. Likewise, the observation at page 5, lines 7 - 9, that "the Tribunal is satisfied that no Regional Office as such has been established nor any area of Scotland designated in terms of the 2001 Regulations" was a finding in fact. The reference to an "area specified" in regulation 8 in connection with a Regional Chairman was not necessarily a reference to the same thing as the "area specified" mentioned in the definition of "Regional Office of the Employment Tribunals" in regulation 2(1). "Area" was not a term of art. It was therefore not possible to reason from the fact that there was one Regional Chairman in Scotland, whose responsibilities covered the whole country, to the conclusion that an area had been specified in a way that could be used for the purpose of the definition of "Regional Office of the Employment Tribunals". On the facts recorded by the Employment Tribunal, there was no "regional office ... established for an area specified by the President", nor, consequently, could there be "an office established for an area within such an area". The Edinburgh office had therefore rightly been held not to be an office at which an originating application could be presented. The appeal should therefore be refused.Discussion
[21] The issue before us is whether the Employment Appeal Tribunal erred in law in concluding that the Edinburgh office was not a "Regional Office of the Employment Tribunals" within the meaning of rule 23(3) of the Rules of Procedure contained in Schedule 1 to the 2001 Regulations. We note that, as Mr Hardman pointed out, the appeal to this court from the decision of the Employment Appeal Tribunal is confined to questions of law. We do not, however, agree that the findings which Mr Hardman submitted were findings in fact by the Employment Tribunal (see paragraph [20] above) truly are findings in fact. They involve construction of the legislation, and are therefore, at least in part, findings in law. [22] We do not consider that it is possible to argue from the fact that there exists a Regional Chairman for Scotland, validly appointed in terms of regulation 8(1) of the 2001 Regulations, to the proposition that Scotland must be treated as a region for the purposes of the definition of "Regional Office of the Employment Tribunals" in Regulation 2(1). It is one thing for the President to specify an area in relation to a Regional Chairman, under regulation 8(1), and quite another for him to specify an area for which a regional office has been established, under regulation 2(1). We therefore do not consider that the existence of a validly appointed Regional Chairman for Scotland is of any assistance to the appellant in his contention that the Edinburgh office qualifies as a Regional Office of the Employment Tribunals. [23] It is, in our view, instructive to examine the development of the legislation regulating the office or offices at which an originating application must be presented. Going back to the 1993 Regulations, the effect of rule 20(2) of Schedule 1 was that any originating application had to be presented to the Office of the Tribunals. The possibility of the Secretary notifying the parties of another office could only arise after the originating application had been presented. The requirements with regard to originating applications were therefore at that stage restrictive. From then onwards, the trend was towards less restrictive requirements. The English 1996 Regulations amended rule 20(2) so as to permit the presentation of an originating application either, as before, at the Office of the Tribunals, or at "any Regional Office of the Industrial Tribunals". That relaxation was not extended to Scotland. The next stage of relaxation was, however, enacted in both jurisdictions. The 2001 Regulations in both jurisdictions amended the definition of "Regional Office of the Employment Tribunals" to include "an office established for an area within such an area" (i.e. an area specified by the President as the area for which a regional office had been established). Finally, in the 2004 Regulations the concept of Regional Offices has been abandoned in favour of "Employment Tribunal Offices". [24] The issue might be regarded as coming to be whether, because Scotland is not divided into a number of regions, the benefit of the relaxation effected by the 2001 Regulations is nugatory in Scotland. In our opinion Lord Johnston (and the passage in Leslie referred to above) went too far in saying that the phrase "or any Regional Office of the Employment Tribunals" should not be in the Scottish regulations. There is no reason why the legislation should not provide for Regional Offices in Scotland, even if there are, and have been, no regional offices established in Scotland. If nothing else, such legislation leaves the way open, as Mr Hardman recognised, for the future creation of Scottish regions. It seems to us that if attention were concentrated on substance, and not on form, it might be argued that the relaxation introduced in England in 1996 opened the way to the presentation of initiating applications, not only as before at the Office of the Industrial Tribunals, but also at Regional Offices, where there were regional offices. The further relaxation in the 2001 Regulations opened the way to presentation of initiating applications at offices within what were in effect subdivisions of regions - an area within such an area. The question might then be asked whether it was the intention to exclude Scotland from that relaxation because there were no regions in Scotland?. It is tempting to answer that question in the negative, and to say that if Scotland had no regions, that was because functionally it was a small enough area not to need subdivision; but that if regions were to be subdivided, why should not Scotland, as a quasi-region, be similarly subdivided, so that applicants in Scotland could share the benefit of the more relaxed regime for making applications? Although we see no reason of policy to support depriving Scottish applicants of that benefit, we have come to the conclusion that that approach is not properly reconcilable with the language of regulation 2(1). [25] We do not consider that it is possible to ignore the fact that the definition of "Regional Office of the Employment Tribunals" in regulation 2(1) begins by referring to "a regional office which has been established ... for an area specified by the President". Although it goes on to refer to "an office established for an area within such an area", the latter phrase cannot in our view be given content if there is not in existence first a regional office of the sort specified in the first part of the definition. It follows, in our opinion, that since the President has not specified an area for a regional office in Scotland, offices established for sub-areas within Scotland, such as the Edinburgh office, cannot be brought within the definition of "Regional Office of the Employment Tribunals" by virtue of the last phrase of the definition. It follows, in our opinion, that it is impossible to stretch the definition so as to bring the Edinburgh office within its scope. [26] We are therefore of opinion that when the appellant's application was presented at the Edinburgh office it was not validly presented in terms of rule 23(3). The application was therefore not timeously presented in terms of section 111(2)(a).Decision
[27] We shall accordingly refuse the appeal, and adhere to the decision of the Employment Appeal Tribunal of 14 January 2004 and the decision of the Employment Tribunal dated 31 March 2003 dismissing the application.
