Appeal No. EATS/0048/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 16 December 2003
 
Before
THE HONOURABLE LORD JOHNSTON
MR P PAGLIARI
DR W M SPEIRS

 

STUART MATHESON	APPELLANT

 

 
MAZARS SOLUTIONS LTD	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr D S Williamson,
Queen’s Counsel
Instructed by-
Messrs Brodies
Solicitors
15 Atholl Crescent
EDINBURGH   EH3 8HA

 
For the  Respondents

 

 

 	 
 
Mr B Collins, Representative
Of-
Mazars
24 Bevis Marks
LONDON   EC3A 7NR

 

 

LORD JOHNSTON:
 
1.	This appeal is taken from a decision of the Employment Tribunal sitting in Edinburgh on a preliminary issue of time bar, where the Tribunal held, that the application which was presented timeously to the Edinburgh area office of the Employment Tribunals but thereafter transferred to the Central Office in Glasgow, so as to reach it after the expiry of the three months’ time limit set down by section 111 of the Employment Rights Act 1996, was therefore out of time.
 
2.	The facts were not in dispute.
 
3.	In terms of Rule 23(3) of the first Schedule to the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001:-
 
“An originating application may be presented at the Office of the Tribunals or any Regional Office of the Employment Tribunals.”
 
4.	The Tribunal having considered that Rule against the background of a definition Rule 2(1), which defines the office of Tribunals as the Central Office of the Employment Tribunals Scotland and:- 
 
“a regional office of the Employment Tribunals as a regional office which has been established under the Office of the Tribunals for an area specified by the President or an office established for an area within such an area.”
 
5.	Against that background the Tribunal concluded that the Edinburgh office was an area office and not a regional office within the meaning of Rule 23(3) and accordingly dismissed the application as being out of time.
 
6.	Mr Williamson, Q.C., appearing for the appellant, submitted that Rule 23(3) and the definition or interpretation sections had to be looked at against the background of section 8 of the main Regulations which says:-
 
“(1) 	The Lord President 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 in relation to him.”
 
7.	Mr Williamson submitted, that, properly understood, that must be interpreted as to include the area office in Edinburgh since a Regional Chairman had to have a region, and, if the region was the whole of Scotland, the appointment was invalid.
 
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.  We do not consider that such an employment 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.
 
10.	However, before us, Mr Williamson introduced a quite separate argument in relation to the issue of Human Rights and in respect of Article 6 of the ECHR entitling a person essentially to have access to a court to enforce a right.  The right in this case was his claim for unfair dismissal which was the substance of his case.
 
11.	Mr Williamson accepted, that as regards the three month time limit, he could not submit against established Strasbourg jurisprudence that that in itself was disproportionate with regard to the legitimate aim that it sought to achieve, namely, the speedy resolution of disputes with a finite process.  However, his argument was more subtle, namely, to the effect that when it came to the manner in which an application should be made, that was merely directive and not mandatory.  An interpretation, if possible, should be put upon that aspect of the Regulations which rendered it compatible with the Convention, and, more importantly, did not achieve a disproportionate result to the denial of a person’s access to the Court if such could be avoided.  He therefore submitted this Tribunal should construe the Regulations so as to effectively include the Edinburgh Office as a Regional Office in order to admit his client to the Tribunal system to prosecute his claim.
 
12.	He referred us to a number of authorities viz:- Perez De Rada Cavanilles v Spain 116/1997/900/1112, Stubbings and Ors v United Kingdom 22083/93 & 22095/93 (both decisions of the European Court of Human Rights), Petch v Gurney [1994] 3AER 731, a decision of the Court of Appeal, R v A [2001] 3All ER page 1, a decision of the House of Lords, and, finally, to our own decision for completeness with regard to the previous Regulations, namely, John E Melville v Brown Brothers & Co Ltd EAT/110/00.  With regard to this latter case, he, however, accepted that it had been superseded by the new Regulations.
 
13.	Mr Collins, a representative for the respondents, made an important point that, at least as regards remedy, the appellant’s position was protected in that respect by a potential claim against his advisers if this case was dismissed as being out of time, the remedy against that result having been in the remit of the advisers when originally instructed.
 
14.	We approach this second issue against the background that we were ready to construe the Regulations as having only one meaning, namely, that the Central Office is the only relevant office for the making of applications and there are no relevant Regional Offices in Scotland.
 
15.	This seems to us to be an important distinction when coming to the issue of proportionality and construction of the Regulations in the context of the Human Rights provisions.  There is no room for manoeuvre.  There is no room, in our opinion, for alternative or different construction.  The place where the application is to be made is not the manner in which it is to be made but is a mandatory, in our opinion, direction rather then merely a directory provision.
 
16.	On this simple basis we do not consider that the legislation is incompatible as we construe it with the Convention.  If the issue of disproportionality does arise in this context we consider that the avoidance of administrative chaos that would result from applicants being able to pick which office of the Tribunal system in Scotland they were going to make their application is a legitimate aim which is not disproportionate to the interpretation that we have put upon the provision.
 
17.	In these circumstances this appeal will be dismissed.