Bangs v Connex South Eastern Ltd.

An unreasonable delay in promulgating an employment tribunal’s decision is not, without more, an independent ground of appeal. Nor does delay create jurisdiction to overturn findings merely because factual errors or omissions make the decision appear unsafe.

An appeal remains confined by Employment Tribunals Act 1996, section 21(1), to questions of law. Delay may exceptionally amount to a serious procedural irregularity where it creates a real risk that a party has lost the substance of the right to a fair trial and it would be unfair or unjust to let the decision stand. Alternatively, factual findings may be challenged if the delay has rendered them perverse. The Human Rights Act 1998 cannot be used to expand a statutory appeal on questions of law into an appeal on fact.

An employment tribunal unanimously upheld Mr Bangs’s complaints that Connex had directly discriminated against him on racial grounds during disciplinary, dismissal and demotion procedures. More than a year elapsed between the conclusion of the evidence and promulgation of the tribunal’s detailed reasons.

The Employment Appeal Tribunal held that errors and omissions attributable to the delay made the decision unsafe. It set the decision aside and ordered a rehearing before a different tribunal. Mr Bangs appealed. Connex cross-appealed, contending that the discrimination findings were perverse and that the complaint should be dismissed.

The central issue was whether unreasonable delay, or resulting factual unsafeness, constituted an independent ground of appeal despite section 21(1) of the Employment Tribunals Act 1996, which confines employment tribunal appeals to questions of law.

1. Appeal allowed and cross-appeal dismissed. The Employment Appeal Tribunal applied an excessively broad test by treating factual unsafeness resulting from delay as an independent ground of appeal. The employment tribunal’s decision was restored and the matter was to proceed to a remedies hearing.

2. Section 21(1) of the Employment Tribunals Act 1996 confines an appeal to questions of law. Unreasonable delay is a fact and does not itself supply an independent ground for reversing the decision. Nor do factual errors or omissions allegedly caused by delay become appealable merely because they render a decision unsafe. Importing that approach from ordinary civil appeals would circumvent the statutory restriction.

3. A factual challenge may succeed where unreasonable delay has rendered the overall decision, or a material finding of fact or credibility, perverse. Perversity is a question of law, but it is exceptionally difficult to establish, particularly for credibility findings made by the tribunal that saw and heard the witnesses.

4. Delay may exceptionally constitute a serious procedural error or material irregularity in the proceedings. The relevant question is whether the delay created a real risk that the complaining party was deprived of the substance of its article 6(1) right to a fair trial and whether allowing the decision to stand would be unfair or unjust. This test is more demanding than factual unsafeness, although less stringent than perversity.

5. Neither article 6(1) nor section 3(1) of the Human Rights Act 1998 permits section 21(1) to be interpreted as creating an appeal on fact. Such a construction would amend, rather than interpret, the statutory scheme.

6. The omissions and alleged mistakes identified by Connex did not establish perversity or a real risk that it had lost the benefit of a fair trial. The tribunal had begun deliberations and drafting soon after the hearing, possessed extensive documents and written submissions, and ultimately produced detailed reasons supported by ample evidence. It was fair and just to let its decision stand.

Lord Justice Dyson and the President agreed with Lord Justice Mummery.

1. Court of Appeal (Civil Division): By [2005] EWCA Civ 14, allowed Mr Bangs’s appeal, dismissed Connex’s cross-appeal, restored the employment tribunal’s decision and directed that the remedies hearing proceed.

2. Employment Appeal Tribunal: Allowed Connex’s appeal because the delayed decision was considered unsafe, set aside the finding of direct race discrimination and remitted the complaint for rehearing before a different tribunal.

3. Employment Tribunal: By a unanimous decision promulgated on 18 August 2003, upheld Mr Bangs’s complaints of direct race discrimination arising from disciplinary, dismissal and demotion procedures.