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Cite as: [2004] ScotCS 250

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Fraser v. The Scottish Ambulance Service [2004] ScotCS 250 (05 November 2004)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Nimmo Smith

Lord Reed

XA141/03

OPINION OF THE COURT

delivered by LORD OSBORNE

APPLICATION FOR LEAVE TO APPEAL

under section 37(1) of the Employment Tribunals Act 1996 against the decision of the EMPLOYMENT APPEAL TRIBUNAL

SUSAN FRASER

Applicant;

against

THE SCOTTISH AMBULANCE SERVICE

Respondents;

_______

Act: Party

Alt: Napier, Q.C.; Shepherd & Wedderburn, W.S.

5 November 2004

[1] The applicant has been involved in proceedings before the Employment Tribunal and the Employment Appeal Tribunal against her former employers, the respondents, over a considerable period of time. She has claimed that she was discriminated against under the Disability Discrimination Act 1995 and also that she was unfairly dismissed on 24 November 2000 by the respondents from her employment with them, latterly as an ambulance care assistant. Her application was considered by the Employment Tribunal on 5, 6, 7 and 8 November and 18 December 2001, but was dismissed by that Tribunal on 8 May 2002. She subsequently appealed to the Employment Appeal Tribunal against that decision, but that appeal was dismissed on 30 January 2003 for reasons given in a judgment of that date. Subsequently, the applicant requested a review of the decision of the Employment Tribunal, by letter dated 1 March 2003. The Employment Tribunal refused that application for review by a decision, dated 11 April 2003. The applicant sought to appeal against that refusal, by a notice of appeal dated 29 May 2003, but that notice of appeal was lodged two days late. Thereafter, by a decision dated 9 July 2003, the Deputy Registrar of the Employment Appeal Tribunal refused an extension of time in which to present that notice of appeal. Following this, the applicant sought to appeal against the decision of 9 July 2003, as a result of which the matter was placed before the Employment Appeal Tribunal judge for his consideration. He ordered a hearing into the matter, which took place on 29 August 2003. The applicant was advised by the Deputy Registrar that the matter for consideration at that hearing related solely to his refusal to extend the time limit for receiving her note of appeal. No question on the merits of the contents of the notice of appeal was to be considered at the hearing.

[2] On 29 August 2003 the Employment Appeal Tribunal ordered that the appeal should be dismissed. In his Opinion associated with that decision, the Employment Appeal Tribunal judge stated:

" ...

(2) Miss Fraser appeared before me, representing herself, and maintained that the unfortunate error in not lodging the appeal in time, was due to ill health and also a failure on the part of Mr. Milne, the President of the Employment Appeal Tribunals, with whom she was in correspondence, complaining about the conduct of the Chairman of the Employment Appeal Tribunal to reply in time.

(3) I sympathise with her position but time limits must normally be obeyed unless there is good reason for not doing so.

(4) In this case there are none, for the simple reason that, on the basis of the decision of the Employment Tribunal on the question of review, there is no sustainable point of law being tendered at this stage, which would justify a review after there has been an appeal to this Tribunal.

(5) In these circumstances I confirm the decision refusing an extension of time. This matter must be brought to termination as far as the proceedings in the Tribunal system are concerned."

[3] When the applicant appeared before this court on 5 November 2004 to support her application for leave to appeal, she explained that, at the hearing on 29 August 2003 before the Employment Appeal Tribunal judge, there had been no discussion regarding the merits of the appeal; the only matter which had been discussed was the matter of the lateness of her notice of appeal and the reasons for it. Against that background, she contended that the reason given by the judge for the refusal of her appeal, as set forth in paragraph 4 of the Opinion, made reference to the merits of the appeal, as seen by the judge, which matter had not been discussed at the hearing itself. Indeed, to the extent that the judge made reference to the matters which were discussed at the hearing, he appeared to sympathise with the position of the applicant.

[4] She went on to explain that, following the decision of 29 August 2003 she had made an application for leave to appeal to the Court of Session to the Employment Appeal Tribunal, by letter dated 16 October 2003. Leave to appeal to the Court of Session was refused by the Employment Appeal Tribunal in a decision dated 28 October 2003. In refusing leave, the Employment Appeal Tribunal judge stated:

"I decline to do so. In my opinion the case has no reasonable prospects of success. For these reasons, this case raises no question of law for the determination of the Court of Session, and leave will not be granted."

[5] In the circumstances described, the applicant contended that a point of law did arise from the manner in which the Employment Appeal Tribunal had handled and dismissed the appeal, with which it had dealt on 29 August 2003.

[6] Senior counsel for the respondent submitted to us that the application for leave to appeal should be refused. No point of law had been identified which would justify leave to appeal being granted. The matter was one of discretion.

[7] We have reached the conclusion that leave to appeal to this court should be granted. We have noted that, prior to the hearing before the Employment Appeal Tribunal judge on 29 August 2003, the applicant had been informed that the matter for consideration at that hearing related solely to the refusal of the Deputy Registrar to extend the time limits for receiving the notice of appeal. No question on the merits of the notice of appeal was to be considered at the hearing. However, despite that state of affairs, the reason given by the Employment Appeal Tribunal judge for the decision which he made was based, not upon the reasons why the applicant's notice of appeal was two days late, but rather upon the basis of considerations related to the merits of the notice of appeal, which the applicant had been informed would not be considered at the hearing.

[8] Having granted leave to appeal to this court, we think it right to record that we informed the applicant that, at the appeal hearing which would follow in due course, this court would expect to be addressed upon the question of law that was seen to arise for this court's decision, the existence of which was not recognised by the Employment Appeal Tribunal. We stated that it appeared to us that it would be necessary for the applicant to argue that there was a question of law arising from the refusal of the Employment Tribunal to entertain a review of its original decision, which could have been, but was not, identified before the Employment Appeal Tribunal; further, that it would be necessary for submissions to be made to this court on that point of law at the hearing. Against this background, we advised the applicant that it would be in the interests of all that she should be legally represented at that time.