SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lady Paton Lord Marnoch	[2011] CSIH 40 XA194/08 OPINION OF THE LORD JUSTICE CLERK in Application for Leave to Appeal under section 37(1) of the Employment Tribunals Act 1996 by RONALD I W FRANCIS Applicant against PERTEMPS RECRUITMENT PARTNERSHIP LTD Respondents: _______

Applicant: Party

Respondents: Mackenzie, Solicitor Advocate (first and second hearings); Hardman, Advocate (third hearing): Pinsent Masons

Intervener (for the Employment Appeal Tribunal): Napier QC; Office of the Advocate General for Scotland (second and third hearings)

29 June 2011

[1] I agree with the Opinion that is to be delivered by Lady Paton.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lady Paton Lord Marnoch	[2011] CSIH 40 XA194/08 OPINION OF LADY PATON in Application for Leave to Appeal under section 37(1) of the Employment Tribunals Act 1996 by RONALD I W FRANCIS Applicant against PERTEMPS RECRUITMENT PARTNERSHIP LTD Respondents: ______

Applicant: Party

Respondents: Mackenzie, Solicitor Advocate (first and second hearings); Hardman, Advocate (third hearing): Pinsent Masons

Intervener (for the Employment Appeal Tribunal): Napier QC; Office of the Advocate General for Scotland (second and third hearings)

29 June 2011

Introduction

[2] The applicant contends that he was unfairly dismissed by the respondents. A three-member employment tribunal concluded that he had not been dismissed, but had resigned. The applicant wished to appeal to the Employment Appeal Tribunal (EAT). He lodged several notices of appeal. Each was rejected as disclosing no arguable question of law and thus no reasonable grounds for bringing the appeal: section 21 of the Employment Tribunals Act 1996, and Rule 3(7) of the Employment Appeal Tribunal Rules 1993 (SI 1993 no 2854). At a subsequent oral hearing before the EAT judge in terms of Rule 3(10), attended by the applicant alone, the applicant again sought to have his appeal progressed to a full hearing by the EAT. Again it was rejected. The applicant then sought leave to appeal to the Court of Session. He did so by letter to the EAT dated 4 September 2008, in the following terms:

" ... I seek leave to appeal to the Court of Session against the decision of the Employment Appeal Judge that my submission of appeal should not be allowed to proceed to a full hearing of the Employment Appeal Tribunal and that the matter should not proceed further.

An outline of the Grounds of Appeal is attached."

By an Order dated 9 October 2008, the EAT judge refused leave to appeal on the basis that the application did not disclose any cogent questions of law. On 21 November 2008 the applicant lodged with the Court of Session an application for leave to appeal in terms of section 37 of the 1996 Act.

[3] The first hearing of the application in the Court of Session on 6 July 2010 was attended by the applicant in person and by Mr Mackenzie, solicitor-advocate for the respondents. Mr Mackenzie opposed the application on three grounds: (i) the application was out of time; (ii) the application was incompetent, as the proper procedure was judicial review: cf Mackenzie, Petitioner, 2000 SC 1; and (iii) in any event, there were no reasonable grounds for bringing the appeal.

[4] As the issue of competency appeared to have implications for employment law and procedure generally, the EAT was invited to intervene.

[5] At a continued hearing on 9 November 2010 (the second hearing), Mr Napier QC appeared on behalf of the Advocate General for Scotland, representing the Ministry of Justice (the EAT being part of the tribunal service, an executive agency of the Ministry). At that hearing, the applicant's supplementary skeleton note of argument drew attention to section 30(2)(f) of the Employment Tribunals Act 1996 (interlocutory matters). Further, during the debate, the question of competency was broadened to include a question of vires, namely whether certain of the rules in the Employment Appeal Tribunal Rules 1993 exceeded the authority given by the primary legislation (the Employment Tribunals Act 1996).

[6] At a further continued hearing of the application on 10 March 2011 (the third hearing), Mr Napier submitted that an appeal to the Court of Session was competent, and that the EAT Rules 1993 were intra vires. Following his submissions, counsel for the respondents did not insist upon any competency challenge. The applicant, for his part, adopted Mr Napier's submissions relating to competency and vires, but raised a further vires argument, namely that the sift procedures in terms of Rule 3(7) allowed an appeal to be terminated on a ground wider than that permitted by the primary legislation.

Relevant legislation and rules

The Employment Tribunals Act 1996

[7] The Employment Tribunals Act 1996 provides inter alia:

"Jurisdiction of Appeal Tribunal

Section 21 (1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal under or by virtue of ... (f) the Employment Rights Act 1996.

Composition of Appeal Tribunal
Section 28 ... (2) Subject to subsections (3) to (5), proceedings before the Appeal Tribunal shall be heard by a judge and either two or four appointed members, so that in either case there is an equal number -

(a) of persons whose knowledge or experience of industrial relations is as representatives of employers, and

(b) of persons whose knowledge or experience of industrial relations is as representatives of workers.

(3) With the consent of the parties, proceedings before the Appeal Tribunal may be heard by a judge and one appointed member or by a judge and three appointed members.

(4) Proceedings on an appeal on a chairman-alone question shall be heard by a judge alone unless a judge directs that the proceedings shall be heard in accordance with subsections (2) and (3) ...

(5) [Repealed] ...

Appeal Tribunal procedure rules

Section 30(1) The Lord Chancellor, after consultation with the Lord President of the Court of Session, shall make rules ("Appeal Tribunal procedure rules") with respect to proceedings before the Appeal Tribunal.

(2) Appeal Tribunal procedure rules may, in particular, include provision ...

(b) with respect to the manner in which any application or complaint to the Appeal Tribunal may be made ...

(f) for interlocutory matters arising on any appeal or application of the Appeal Tribunal to be dealt with otherwise than in accordance with section 28(2) to (5) of this Act ...

(3) Subject to Appeal Tribunal procedure rules ... the Appeal Tribunal has power to regulate its own procedure."

Appeals from Appeal Tribunal

Section 37 (1) ... an appeal on any question of law lies from any decision or order of the Appeal Tribunal to the relevant appeal court with the leave of the Appeal Tribunal or of the relevant appeal court.

(2) In subsection (1) the 'relevant appeal court' means -

... (b) in the case of proceedings in Scotland, the Court of Session."

The Employment Appeal Tribunal Rules 1993 (as amended)

[8] The Employment Appeal Tribunal Rules 1993 as amended provide inter alia:

"Interpretation

Rule 2(1) In these rules, unless the context otherwise requires -

... "the Appeal Tribunal" means the Employment Appeal Tribunal established under section 87 of the Employment Protection Act 1975 and continued in existence under section 20(1) of the 1996 Act and includes the President, a judge, a member or the Registrar acting on behalf of the Tribunal ...

Overriding objective
Rule 2A(1) The overriding objective of these Rules is to enable the Appeal Tribunal to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable -

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the importance and complexity of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

(3) The parties shall assist the Appeal Tribunal to further the overriding objective.

Institution of Appeal

Rule 3(1) Every appeal to the Appeal Tribunal shall... be instituted by serving on the Tribunal [certain] documents ...

... (7) Where it appears to a judge or the Registrar that a notice of appeal ...

(a) discloses no reasonable grounds for bringing the appeal ...

he shall notify the Appellant ... accordingly informing him of the reasons for his opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the notice of appeal ...

(8) Where notification has been given under paragraph (7), the appellant ... may serve a fresh notice of appeal ... within [certain time-limits] ...

(10) Where notification has been given under paragraph (7) and within 28 days of the date the notification was sent, an appellant ... expresses dissatisfaction in writing with the reasons given by the judge or Registrar for his opinion, he is entitled to have the matter heard before a judge who shall make a direction as to whether any further action should be taken on the notice of appeal ..."

The Rules of the Court of Session

[9] The Rules of the Court of Session provide inter alia:

"Rule 41.2 - Applications for leave to appeal

... (2) Where -

(a) the tribunal has refused leave to appeal and such refusal is not final, or

(b) leave to appeal is required from [the Court of Session] and not the tribunal,

any application to the court for leave to appeal shall be made in Form 40.2 to the Inner House.

(3) An application to the court under paragraph (2) for leave to appeal shall be lodged in the General Department -

... (b) where no [period is prescribed by the relevant enactment] within the period mentioned in paragraph (1)(b) of Rule 41.20 (lodging of appeal in court) ...

Rule 41.20. - Lodging of appeal in court

(1) ... the appeal shall be lodged in the General Department -

... (b) where no [period is prescribed by the relevant enactment], within 42 days after -

(i) the date on which the decision appealed against was intimated to the appellant; or

(ii) where the tribunal issued a statement of reasons for its decision later than the decision, the date of intimation of that statement of reasons to the appellant ...

(3) Where an application for leave to appeal was made to the court within the period specified in paragraph (1)(b) but that period has expired before leave has been granted, the appeal may be lodged within 7 days after the date on which that leave was granted ..."

Submissions for the respondents
Time-limit

[10] Mr Mackenzie, on behalf of the respondents, contended that the applicant had failed to comply with the mandatory time-limit of 42 days imposed by the Rules of the Court of Session, in particular Rules 41.2(3) and 41.20: cf Hakim v Secretary of State for the Home Department 2001 SC 789. The refusal of leave to appeal by the EAT judge was dated 9 October 2008. The application should therefore have been lodged by Thursday 20 November 2008. The application was not lodged until Friday 21 November 2008, and was out of time.

Competency and vires

[11] Mr Mackenzie referred to Mackenzie, Petitioner, 2000 SC 1, and argued that the application for leave to appeal was incompetent. There had been no "decision or order" of the EAT in terms of section 37 of the Employment Tribunals Act 1996. The EAT's refusal of leave to appeal was an administrative direction in terms of Rule 3. Where the EAT refused to accept jurisdiction in terms of Rule 3, that decision was not subject to appeal to the Court of Session, but was subject only to the court's supervisory jurisdiction by way of judicial review.

[12] At the second hearing, Mr Mackenzie reiterated that the competent mode of review was judicial review. In Krishna v Argyll and Bute Council 2005 SC 549 (a decision drawn to the court's attention by Mr Napier) the competency point had not been argued. This court had therefore to revert to the statute and rules. On a proper construction of the statute and rules, what was attempted to be appealed against in the present case was not a decision or order of the EAT. The judge who had decided that the applicant's appeal should not proceed further had acted as a judge, not as the EAT. The current application did not therefore qualify in terms of the Rules, and was incompetent.

[13] At the third hearing, Mr Hardman intimated that, having considered Mr Napier's submissions and the decision in Krishna v Argyll and Bute Council, the respondents did not wish to present any opposition based upon competency. Nor did the respondents have any submission relating to vires.

Whether there were reasonable grounds for bringing the appeal

[14] Mr Mackenzie on behalf of the respondents conceded that the circumstances in which the applicant's employment ended were not entirely clear. However he supported the decisions and reasoning of the employment tribunal and the EAT.

Submissions for the EAT

[15] Mr Napier submitted that the Court of Session had, in Krishna v Argyll and Bute Council 2005 SC 549, decided that an appeal against a refusal under Rule 3(10) could be brought to the Court of Session under section 37 of the Employment Tribunals Act 1996. There was no good reason to depart from that decision. Any such departure would result in the avenue of appeal being restricted to judicial review, which was not desirable. In response to questions from the bench, Mr Napier conceded that Krishna concerned an appeal against the decision of a single tribunal member, whereas the present case involved an appeal against the decision of three tribunal members. However it was contended that section 28 of the 1996 Act, taken with Rule 2, permitted the EAT, in the course of regulating its own procedure, to arrange matters such that a single judge could rule that an appeal should not go forward to the EAT even although the decision appealed against had emanated from a three-member tribunal. The present application was competent, and the 1993 Rules were intra vires.

[16] At the subsequent hearing, Mr Napier again submitted that the decision in question was appealable to the Court of Session being "a decision or order" of the EAT; and that the Rules were not ultra vires. The position of the Ministry of Justice was that an appeal under section 37(1) of the 1996 Act against a decision of the EAT under Rule 3(10) was competent. Reference was made to Krishna v Argyll & Bute Council 2005 SC 549, paragraphs [33] and [37]. Although there had been amendments to Rule 3 following upon Krishna, those amendments did not affect the competency of the appeal.

[17] In relation to the question whether Rule 3 (in particular Rule 3(7)-(10) concerning the sift procedures) was intra vires, the argument advanced by Mr Napier on this occasion was that sections 28 and 30 of the 1996 Act envisaged a distinction between appeals which had been sifted and found properly to have focused a question of law (heard before a full tribunal, subject to certain exceptions detailed in section 28), and a hearing of interlocutory matters, which might be before a judge alone, or the registrar. In England, interlocutory matters included the striking-out of a claim on the basis that the claim could not reasonably be argued: Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326; Casella London Ltd v Banai [1990] ICR 215. Thus the Rule 3 sifting procedure was viewed in England as interlocutory. Section 30(2)(f) of the 1996 Act permitted rules providing for "interlocutory matters" to be dealt with "otherwise than in accordance with section 28(2) to (5)" - in other words, by a single judge or registrar acting as the EAT. The same approach should be adopted in Scotland: cf the procedure where leave of the Inner House was required for an appeal to the House of Lords or Supreme Court against an interlocutory judgment (section 40(1)(a) of the Court of Session Act 1988) as refusal of leave was in effect an interlocutory judgment which brought to an end the action by dismissing it. In particular there was no contradiction in categorising as interlocutory a decision which, by sustaining a preliminary plea, led to the dismissal of an action. Nor did it matter that an appeal from the decision of a three-member tribunal was sifted (and possibly brought to an end) by a single member sitting alone. In Scotland, a criminal appeal against conviction or sentence could be sifted out by a single judge, notwithstanding that the ultimate appeal would require to be heard by two or three judges. In England, a case might be struck out as hopeless by a Master, although any trial would have to be heard by a judge; an application for permission to appeal to the Court of Appeal could be dismissed by a single Lord Justice, even although the appeal, if it proceeded, would have to be heard by a court of two or three. Rule 3(7)-(10), providing for a sift procedure in the EAT, was therefore properly construed as an interlocutory matter and the rule was intra vires the 1996 Act. Were this court to hold otherwise, the consequences would be far-reaching. The EAT would probably have to change its procedures in both Scotland and England in order to take account of the requirement to involve lay members in the operation of the sift. Cases which had been rejected at previous sifts might revive, and have to be re-considered by full hearings of the EAT. There would be significant implications in terms of costs and resources.

Submissions for the applicant
Time-limit

[18] The applicant drew attention to a date stamp (21 October 2008) on the judge's written refusal dated 9 October 2008. He submitted that the date stamp suggested that the document had only become available to the office of the EAT on 21 October 2008. Following upon the first hearing on 6 July 2010, the applicant made inquiries of the EAT and received an e-mail on behalf of the registrar dated 18 October 2010 in the following terms:

"I am writing to advise that the date of 9 October 2008 is the date on which the Order was drafted. The Order was issued on 21 October 2008. The Order was stamped with the date 21 October 2008 to show that it was issued to the parties on this date."

The applicant explained that he had not received intimation of the refusal until 23 October 2008. He contended that, on a proper construction of the Rules of Court, he had 42 days from the date of intimation to him within which to lodge any application for leave to appeal. Accordingly the application was within time.

Competency and vires

[19] At the first hearing, the applicant argued that there had been a change in EAT procedure since Mackenzie. While the EAT registrar or judge continued to issue directions indicating whether or not the application contained grounds which the EAT could entertain, the new procedure permitted the applicant to address the EAT judge at an oral hearing, as had been done in the present case. The EAT judge, Lady Smith, had thereupon issued a judgment. That judgment qualified within section 37 as a "decision or order" of the EAT.

[20] At subsequent hearings, the applicant adopted Mr Napier's submissions, but also introduced a new vires argument. He submitted that Rule 3(7) was ultra vires. Section 21 of the 1996 Act gave the EAT jurisdiction restricted to any question of law. But Rule 3(7) permitted an appeal where there were "reasonable grounds for bringing the appeal" - i.e. wider grounds. Thus Lady Smith's rulings, although compliant with the Rules, were ultra vires.

Whether there were reasonable grounds for bringing the appeal

[21] The applicant submitted that he had reasonable grounds for bringing the appeal. The tribunal had erred in (a) permitting the respondents to depart from their formal written acknowledgment in form ET3 that the applicant had been "dismissed", and to argue that he had "resigned"; (b) concluding that the applicant had indeed resigned; (c) giving no reasons in law to support such a conclusion. The applicant contended that he had never offered his resignation. Even if he were deemed to have accepted voluntary redundancy, that in law amounted to dismissal, and his complaint was that the procedures whereby employees had been selected for voluntary redundancy were obscure and unfair.

Reply for the EAT

[22] In response to the applicant's vires argument that the test in Rule 3(7) went beyond what was authorised by primary legislation, Mr Napier explained that Rule 3(7) was based upon the wording for the striking-out provision under the civil procedure rules in England. The EAT had (i) power to deal with interlocutory matters, and for that purpose (ii) could be constituted by a judge alone. In the present case, the decision challenged fell within these authorised parameters. There had been no exceeding of vires. The operator of the sift had been given power to strike out a case where the requirement of "no reasonable grounds for bringing the appeal" was met, even if there was an extant question of law. Prospects could be taken into account.

Discussion
Time-limit

[23] I agree with the applicant that, on a proper construction, Rules of Court 41.2 and 41.20 permitted him 42 days from receipt of intimation of the decision of 9 October 2008 within which to lodge his application for leave to appeal. The applicant explained that he had not received intimation until 23 October 2008. That information was not contradicted by the respondents, and was consistent with the date stamp on the written decision and with the information contained in the e-mail on behalf of the registrar dated 18 October 2010, referred to in paragraph [18] above. Accordingly I consider that the application was timeously lodged on 21 November 2008.

Competency and vires

[24] Two main issues were focused during the debate:

(i) Whether the present application for leave to appeal to the Court of Session is competent in terms of section 37 of the Employment Tribunals Act 1996, or whether an alternative procedure (judicial review) should have been adopted.

(ii) Whether Rule 3(7)-(10) of the Employment Appeal Tribunal Rules 1993 is intra vires.

(i) The competency of the application

[25] In Mackenzie, Petitioner, 2000 SC 1, Lord Cameron of Lochbroom considered that the proper procedure for an application for leave to appeal to the Court of Session was by way of judicial review. However that approach was not followed by Lady Smith in Krishna, Petitioner 2003 ScotCS 207 (15 July 2003), where she observed:

"[25] Section 37 of the 1996 Act is clear and unequivocal in its terms. A party who is aggrieved by any decision or order of the Appeal Tribunal can appeal against it, with leave, to the Court of Session provided it raises a question of law. A decision by the Appeal Tribunal as to whether or not it has jurisdiction clearly raises a question of law, namely that of whether the notice served, properly analysed, discloses an argument that the decision of the employment tribunal resulted from an error of law on its part ...

[26] ... I am not satisfied that the decision appealed against needs to be characterised as a disposal of the appeal for section 37 to apply. Provided that the Appeal Tribunal has made a decision or order that raises a question of law, it can be appealed against, albeit with leave ...

[27] It is implicit in the view that I have expressed above that I do not agree with the petitioner's submission that, when making his decision and order, Lord Johnston [the then Appeal Tribunal judge] was not acting as the Appeal Tribunal ...

[28] Mr Napier seemed to suggest that since there was no express reference to the Appeal Tribunal in subsection (4) of section 28, the judge acting alone in appeal proceedings thereunder would not be acting as the Appeal Tribunal. That cannot, in my opinion, be correct. The entire section deals with the composition of the Appeal Tribunal ...

[32] ... in terms of Rule 3(1) of the 1993 Rules, once the notice of appeal and relevant documents are served on the Appeal Tribunal, the appeal is 'instituted'. The appeal can, at that stage, be regarded, in my opinion, as having arrived within the curtilage of the Appeal Tribunal and it has to decide what it is going to do with it ... In all the circumstances, given that the appeals must thus be regarded as having been instituted, I do not see that the fact the Appeal Tribunal subsequently decides it does not have jurisdiction in respect that they do not disclose relevant grounds of appeal means that that decision is not properly to be regarded as a decision of the Appeal Tribunal for the purposes of section 37 ..."

[26] In a subsequent decision concerning the merits of Mrs Krishna's claim (Krishna v Argyll and Bute Council 2005 SC 549), the Inner House agreed with the approach adopted by Lady Smith, observing:

"[37] ... on a proper construction of section 21 of the 1996 Act, the 1993 Rules, and the Practice Direction of 1996, the EAT is in our view entitled to refuse to allow a full hearing in respect of appeals which do not properly and relevantly focus a question of law. The appellant is then given an opportunity to revise the notice of appeal. But thereafter, any notice of appeal which fails to meet with 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 (cf Krishna, Petitioner, paras 10, 24-33).

[38] It will be seen therefore that we do not agree with the approach to the EAT appeal procedure adopted in Mackenzie, Petitioner. Nor do we accept the appellant's contention that the procedure introduces an unauthorised 'leave to appeal' requirement. As noted in para [34] above, in terms of r 3(1), the appeal is 'instituted' and comes into existence as soon as a timeous notice of appeal arrives at the offices of the EAT. 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 wording of r 3(10) ... expressly recognises that the appeal is in existence and is being processed through various stages ..."

[27] In my opinion, the proper construction of the legislation and the Rules is as set out in Krishna, Petitioner and Krishna v Argyll and Bute Council, for the reasons therein stated. The decision and reasoning in Mackenzie, Petitioner, falls to be disapproved. I am therefore satisfied that Lady Smith's refusal dated 9 October 2008 to grant leave to appeal to the Court of Session constituted a "decision or order of the Appeal Tribunal" within the meaning of section 37(1) of the 1996 Act; that the present application to the Court of Session for leave to appeal against that decision is competent; and that the applicant does not have to resort to judicial review.

(ii) Whether Rule 3(7)-(10) is intra vires

[28] I accept that sections 28 and 30 of the 1996 Act envisage a distinction between the hearing before a full tribunal of an appeal which has been sifted and properly focuses a question of law, and a hearing on interlocutory matters (which might take place before a judge alone, or the registrar). I note that in England, the sift provisions in Rule 3 are regarded as an interlocutory matter, on the basis that it is generally recognised that the striking-out of a claim as one which cannot be reasonably argued is an interlocutory matter: cf Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326; Casella London Ltd v Banai [1990] ICR 215 (the guiding principle being that a decision is to be treated as "final" and not "interlocutory" only if the question before the court would have disposed of the case whichever way it had been decided). I am persuaded that the same approach should be adopted in Scotland. It follows that, as section 30(2)(f) of the 1996 Act permits interlocutory matters to be dealt with otherwise than in accordance with section 28(2) to (5), it is not ultra vires of the 1996 Act to have a rule such as Rule 3(7)-(10) empowering a judge, sitting alone, to make a decision of the EAT that a notice of appeal discloses no reasonable grounds for bringing an appeal. Furthermore, the EAT sifting procedure, which has been in place since the Rules were amended in 2004, in my opinion satisfactorily meets the overriding objective of dealing with cases expeditiously and fairly in accordance with Rule 2A of the 1993 Rules.

[29] As for the argument that the terms of Rule 3(7) - "no reasonable grounds for bringing the appeal" - are ultra vires of section 21 of the 1996 Act, the Rules must be construed in a way which is compliant with the Employment Tribunals Act 1996. The 1996 Act gives the EAT jurisdiction in relation to "any question of law". Against the background of the primary legislation, Rule 3(7), on a proper construction, does no more than provide that the applicant must be able to show that his contentions relating to the question(s) of law contained in his note of appeal disclose reasonable grounds for bringing the appeal. Rule 3(7) does not, in my view, broaden the possible grounds of appeal beyond a question or questions of law. Lady Smith's decisions not to allow the applicant's appeal to proceed to a full hearing of the EAT were taken in that context, and were not ultra vires.

Whether there are reasonable grounds for bringing the appeal

[30] I consider that the applicant has stateable arguments in relation to the following questions of law:

1. Whether the employment tribunal was entitled to allow issues relating to resignation to be raised and founded upon for the first time at the hearing, without any prior notice to the applicant, when the respondents had, in their written form ET3, acknowledged (without qualification), that the applicant had been dismissed.

2. Whether the employment tribunal gave adequate reasons for its decision.

3. The proper construction and effect in law of (a) the applicant's contract of employment with the respondents; (b) the discussions at the meeting held on 12 December 2006 (recorded in a transcript); (c) the applicant's subsequent e-mails dated 13, 14, and 28 December 2006; and (d) the respondents' letter to the applicant dated 3 January 2007.

4. Whether the applicant did, as a matter of law, resign, or whether he was dismissed, and if so, whether the dismissal was unfair.

Further questions of law may arise: but as matters stand, I am persuaded that the applicant has reasonable grounds for bringing the appeal.

Decision

[31] For the reasons given above, the applicant's application for leave to appeal to the Court of Session is, in my opinion, neither out of time nor incompetent. Further I am persuaded that the applicant has made out reasonable grounds for bringing the appeal. I accordingly propose that his application for leave to appeal be granted, and that any question of expenses be reserved until parties have had an opportunity to address the court.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lady Paton Lord Marnoch	[2011] CSIH 40 XA194/08 OPINION OF LORD MARNOCH in Application for Leave to Appeal under section 37(1) of the Employment Tribunals Act 1996 by RONALD I W FRANCIS Applicant against PERTEMPS RECRUITMENT PARTNERSHIP LTD Respondents: _______

Applicant: Party

Respondents: Mackenzie, Solicitor Advocate (first and second hearings); Hardman, Advocate (third hearing): Pinsent Masons

Intervener (for the Employment Appeal Tribunal): Napier QC; Office of the Advocate General for Scotland (second and third hearings)

29 June 2011

[32] I agree with your Ladyship regarding the disposal of this Application and desire only to say a few words on the matter of its competency. This was initially challenged by the respondents under reference to Mackenzie, Petitioner 2000 SC 1 and the challenge led to two continuations of the case when we were addressed, in addition, by senior counsel for the Ministry of Justice.

[33] On the last such occasion we were advised finally that the empowering provision for Rule 3(7)-(10) of the Employment Appeal Tribunal Rules 1993 (as amended) was thought to be section 30(2)(f) of the Employment Tribunals Act 1996 in regard to which it was argued that the reference to "interlocutory matters" should, in a United Kingdom statute, be construed according to English terminology.

[34] For my part, I am prepared to accept the foregoing submissions but I wish to reserve my opinion on the further question whether an order made under Rule 3(7)-(10) (loosely referred to as the "sift provisions") constitutes a decision of the Appeal Tribunal for purposes of an appeal to this court under section 37 of the 1996 Act. The decision of this court in Krishna v Argyll & Bute Council 2005 SC 549 suggests that it should be so regarded but it is clear that in that case there was no full argument on the point and it is also clear that the decision of the Employment Appeal Tribunal in that case could have been viewed as one taken under section 28(4) of the 1996 Act; - see Krishna, Petitioner [2003] Scot CS 207 per Lady Smith at paras 27 and 28.

[35] In the result, as your Ladyship has said, the respondents appeared to regard the decision in Krishna v Argyll & Bute Council as decisive and dropped the challenge to competency, thus depriving the court of a proper contradictor on the point. While it is, of course, always open to the court to pursue a point of competency independently, in this particular instance I do not myself regard that course as being appropriate. It is, however, desirable that in any future amendment to the 1996 Act this matter be put beyond doubt one way or the other.