Paw v Revenue & Customs

An appeal to the Employment Appeal Tribunal under Employment Tribunals Act 1996, section 21(1), is not confined to a formal judicial decision. It may concern any question of law arising in proceedings before an Employment Tribunal, including an omission, unreasonable delay, bias, disqualification, or a communication reflecting a decision made by or on the instructions of a judge.

However, jurisdiction does not establish a question of law. The EAT will not review administrative complaints or discretionary case-management decisions where no arguable error of law arises. Time limits remain strict, and an extension requires an exceptional reason.

The appellant challenged a Registrar’s decision concerning five purported appeals arising from letters sent by an Employment Tribunal in existing proceedings. Four letters were treated as ordinary correspondence rather than judicial decisions, and three appeals were also lodged out of time. The Registrar refused a review.

The EAT considered whether the appeals were within time, whether section 21(1) extended to matters other than formal judicial decisions, and whether the challenged letters raised any question of law. Judge McMullen QC also considered applications to postpone the hearing, for review, and for permission to appeal.

1. Out-of-time appeals. Appeals PA/0703/11, PA/0704/11 and PA/1552/11 were lodged 27, 7 and 56 days late. Even on the appellant’s case as to receipt of the correspondence, sufficient time remained to appeal within the applicable 42-day period. No exceptional reason justified extending time.
2. Scope of appellate jurisdiction. Section 21(1) of the Employment Tribunals Act 1996 is expressed in wide terms. An appeal may arise from an omission, unreasonable delay, alleged bias or automatic disqualification, even where no formal judicial decision has been made. The relevant question is whether the matter arises in Employment Tribunal proceedings.
3. Letters PA/0705/11 and PA/0715/11. The Registrar was wrong to treat the letters as outside the EAT’s jurisdiction merely because they were not plainly judicial decisions. They reflected decisions made by, or on the instructions of, an Employment Judge, or matters arising in ongoing proceedings. The appeals therefore succeeded at that jurisdictional stage.
4. Final sift. The appeals nevertheless had no reasonable prospect of success. PA/0705/11 merely repeated an earlier decision and identified the proper routes for judicial appeals and administrative complaints. PA/0715/11 concerned the handling of a complaint and repetition of matters already decided. Neither raised a question of law. The matters were administrative or discretionary and were not suitable for appellate intervention.
5. The application for review was refused. Permission to appeal to the Court of Appeal was refused because there was no compelling reason and no reasonable prospect of success.

• Employment Appeal Tribunal: The Registrar held that four letters did not contain judicial decisions and that no appeals lay. The Registrar refused review. Judge McMullen QC held that two letters fell within the potential scope of section 21(1), but then sifted both appeals out under rule 3(7) because they disclosed no question of law. Three further appeals were held out of time and no extension was granted.