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Delay by Employment Tribunals

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In a series of four conjoined appeals (the lead case being Kwamin v Abbey National plc), the EAT has handed down guidance on what delays are, and are not, acceptable between a case finishing and the tribunal issuing its decision. If there is excessive delay then this, without more, will give rise to grounds for appeal.

Burton P. held that:

  • a reserved judgment should be sent to the parties within 3 1/2 months of the closing speeches (or written submissions, if later). This is analogous to the 3 month period in the High Court, with an extra 1/2 month to reflect the time taken for the chairman to consult the wing members.(para 9)
  • in lengthy cases, scheduled to last more than few days, the administrative arrangements should include a one- or two- day slot for the chairman to write the judgment, after the case has finished. The chairman should not be catapulted straight into another case (para 10)
  • however, the fact that a judgment takes more than 3.5 months to promulgate is not a reason to set the judgment aside - for a re-hearing would merely cause further delays for the parties, with the risk of witnesses memories fading further (para 12)
  • the issue for the appellate court is whether the party who has lost has been deprived of a fair trial by virtue of the delay in judgment (para 13)
  • the losing party must demonstrate one or more errors or omissions in the decision which, whilst not necessarily amounting to perversity in their own right, are sufficient to show the decision is unsafe by virtue of the delay (para 15.1)
  • the appeal court should also consider whether the whole judgment must be set aside, or just parts of the judgment (para. 15.3)
  • a distinction should be drawn between cases where the decision was taken and a first draft produced shortly after the hearing, but there was then long delay in tidying up that draft, and cases where no "all but final" draft of the decision produced within a short time of the hearing (para 15.6)

After setting out the general principles, the EAT analysed the four cases at length. They are useful reading for anybody who wishes to know which side of the line their cases fall on.