Africa Advocacy Foundation v Kiwanuka

A procedural error in determining a review application does not automatically invalidate the decision. The court should examine whether it made a material difference, including by considering what the affected party would have said. Rule 11 of the Employment Tribunals Rules of Procedure 1993 did not expressly list error of law, but such an error may in some circumstances fall within rule 11(e), the interests-of-justice ground. That ground does not require review where a represented party had a fair opportunity to raise the point in the original proceedings and failed to do so. Refusal to extend the review time limit is discretionary. An understandable mistaken assumption about service is not evidence of judicial bias.

The Africa Advocacy Foundation sought permission to appeal against an Employment Appeal Tribunal judgment dated 24 May 2001, which had dismissed its appeal from an Employment Tribunal decision.

The Employment Tribunal had ordered payment of wages after rejecting the argument that the employment contract was void or voidable because the employee had obtained employment by fraud. The Foundation later sought to set aside the order or obtain a review, arguing that the proceedings should have been brought against its trustees and that there had been procedural and legal errors. The review application was refused as out of time and lacking reasonable prospects. The central issues were whether the alleged procedural breach invalidated the refusal of review, whether error of law could engage rule 11(e), and whether time should have been extended.

The application for permission to appeal was dismissed.

1. The Employment Appeal Tribunal had assumed, for the purposes of its decision, that the Foundation had not received a letter objecting to review. That amounted to a procedural error, but it did not automatically invalidate the Employment Tribunal’s decision. The proper approach was to consider the consequences of the error by ascertaining what the Foundation would have said in response. Having heard its representative, the Employment Appeal Tribunal was entitled to conclude that the error made no material difference.
2. The Employment Tribunal’s mistaken assumption that the letter had been copied to the Foundation was understandable in the circumstances. It was not evidence of judicial bias.
3. The Employment Tribunal Chairman was correct that rule 11 of the Employment Tribunals Rules of Procedure 1993 did not expressly include error of law among the grounds for review. However, an error of law could in some circumstances fall within rule 11(e), namely where the interests of justice required review.
4. The Chairman had considered the interests-of-justice ground in its full scope and rationally refused a review. The Foundation had conducted the original proceedings with legal representation and had ample opportunity to raise the point about its legal status but had not done so.
5. The Chairman had a discretion whether to extend time. The Foundation’s legal status was peculiarly within its own knowledge, and it sought to reopen a decision made more than a year earlier without adequate explanation for the delay. There was no proper basis for interfering with the exercise of that discretion and no realistic prospect of a successful appeal.

1. Court of Appeal (Civil Division): On 15 October 2001, Keene LJ dismissed the application for permission to appeal.
2. Employment Appeal Tribunal: On 24 May 2001, the EAT dismissed the Foundation’s appeal from the Employment Tribunal at a preliminary hearing.
3. Employment Tribunal: The Tribunal ordered the Foundation to pay wages claimed by the respondent. A later application for review was refused on 21 December 2000, including because it was out of time.