Delay by Employment Tribunals

The Court of Appeal has, this morning, handed down its judgment in Bangs v Connex South Eastern on the question of whether lengthy delay by a tribunal when promulgating its decision is, of itself, a ground of appeal.

This case was heard as one of four similar cases by the EAT under the conjoined title Kwamin v Abbey National (see bulletin 9th March 2004). There was a gap of 14 months between ending the evidence and issuing the written decision.

The Court of Appeal has set out a more stringent approach than the EAT did on the question of delay in issuing the decision. It made it clear that no appeal can lie on the basis of facts found by the tribunal so - differing from the EAT - even if delay meant the tribunal had got the facts wrong (short of a plain case of perversity), this was NOT a valid ground of appeal (see para 42). The Court of Appeal did hypothosise, though, that a claim might lie against the State in such circumstances (para. 51).

The Court of Appeal set out clear guidelines dealing with the consequence of delay, at para. 43 of its decision. The essence is that, in the absence of perversity, delay will not normally be a ground of appeal. It emphasised that most tribunals do issue decisions within the target period of 3.5 months after conclusion of the hearing, and that this 'delay' issue should rarely arise in practice.

Yaya Bangs v Connex South Eastern Ltd.