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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hynd v. Armstrong & Ors [2005] ScotCS CSIH_12 (21 January 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_12.html Cite as: [2005] ScotCS CSIH_12, [2005] CSIH 12 |
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Hynd v. Armstrong & Ors [2005] ScotCS CSIH_12 (21 January 2005)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Osborne Lord Hamilton
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[2005CSIH12] XA158/04 OPINION OF THE COURT delivered by LORD PRESIDENT in APPEAL TO THE COURT OF SESSION under section 37 of the Employment Tribunals Act 1996 by ROBERT GRAHAM HYND Appellant; against (FIRST) DAVID J. ARMSTRONG and OTHERS; and (SECOND) MESSRS BISHOPS, SOLICITORS and OTHERS Respondents: _______ |
Act: Fairley; Harper MacLeod (Appellant)
Alt: Napier, Q.C.; MacRoberts (Respondents)
21 January 2005
[1] In their answers the respondents maintain that the appeal is incompetent, in that the grounds of appeal are not the grounds on which leave to appeal to this court was granted by the Employment Appeal Tribunal. [2] The Employment Appeal Tribunal decided that there was not an error of law in the decision of the employment tribunal that the principal reason for the dismissal of the appellant fell within Regulation 8(2) of the Transfer of Undertakings (Protection of Employment) Regulations 1981. [3] In seeking leave from the Employment Appeal Tribunal to appeal to this court the respondents submitted, by letter dated 16 November 2004, that the Employment Appeal Tribunal had not addressed two matters. The first was whether Regulation 8(1) and 8(2) were mutually exclusive, and which of them ought to have applied. The second was on whom the burden lay of establishing the principal reason for dismissal. The Employment Appeal Tribunal gave leave to appeal without any specification or restriction. [4] Mr. Fairley, who appeared for the appellant, submitted that the grounds of appeal were based on the latter contention. They stated that in view of facts found by the Tribunal and set out in them, the employment tribunal had erred in law by incorrectly applying the test in Regulation 8(2). In any event, having obtained leave from the Employment Appeal Tribunal the appellant did not require further leave in respect of any other question of law which he sought to argue. It would have been different if the Employment Appeal Tribunal had refused leave. In that case the appellant would have required to obtain leave from this court. If neither of the foregoing submissions was accepted, he invited the court to grant leave in respect of the grounds of appeal. [5] Section 37(1) of the Employment Tribunals Act 1996 states:"Subject to subsection (3), 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".
Subsection (3) is of no relevance for present purposes.
[6] In our view it is plain that it is not open to this court to entertain an argument on any question of law which has not been the subject of the granting of leave, either by the Employment Appeal Tribunal or by this court where it is the relevant appeal court. Mr. Fairley drew to our attention that, prior to the coming into force of the Practice Direction (Employment Appeal Tribunal - Procedure) 2004 on 9 December 2004, it was not stated in a practice direction that a party who was seeking leave to appeal to the Court of Session required to state the point of law to be advanced. This cannot, in our view, affect the statutory requirement for an appellant to obtain leave to cover the particular point or points of law which he seeks to argue before this court. [7] As far as the present case is concerned we have had considerable difficulty in relating what was stated in the letter to the alleged error of law on the part of the Employment Tribunal, which is alleged in the grounds of appeal. [8] We have, however, considered whether leave should be granted by this court. In accordance with past practice, an applicant for leave to appeal"must generally show something of the nature of probabilis causa in relation to a genuine point of law which is of some practical consequence" (Campbell v. Dunoon & Cowal Housing Association Limited 1992 S.L.T. 1136).
For the respondents Mr. Napier questioned whether the proposed grounds of appeal related to a matter which had been raised before in these proceedings. Having considered the terms of the decision of the Employment Tribunal we are not satisfied that this objection is well-founded. Further, we consider that the grounds of appeal raise a question of law which is appropriate for determination by this court.
[9] In these circumstances we find it unnecessary to resolve the question whether the grounds of appeal were covered by the respondents' letter, and we will grant leave in respect of the grounds of appeal.
