Appeal not suspension the remedy for non-party to award
A medical practice ordered to re-engage a doctor following a claim for unfair dismissal brought against a health board to which the practice was not a party, has had a petition for suspension of the award dismissed.
Lord Pentland in the Court of Session held that it would have been competent for the practice to appeal the decision despite being a non-party, that it would still be possible to seek permission to appeal late, and that the remedy of suspension was incompetent where such rights of appeal existed.
The petitioner was Levenside Medical Practice of Dumbarton. It had successfully applied to take on the patients from another dissolved practice at the same health centre on the invitation of the local health board. It also took over, under the TUPE Regulations, the contracts of five employees of the dissolved practice, but did not engage the doctor, Dr Neilson, who had been a partner in that practice and who, like the five employees, had transferred temporarily to the health board following the dissolution.
Dr Neilson brought a claim for unfair dismissal against the health board, seeking among other things an order for re-engagement, but did not wish to involve the petitioner in the claim. Neither the health board nor the petitioner itself sought for it to be joined in the proceedings, even once a finding of unfair dismissal was made and a remedies hearing fixed, but an employment judge made an order for re-engagement against the petitioner as well as a financial award against the health board. The health board appealed; a sifting decision on the appeal was still to be made.The petitioner sought suspension of the award on the grounds of lack of jurisdiction, breach of natural justice, and infringement of the petitioner’s article 6 rights; Dr Neilson challenged the competency of it doing so.
Lord Pentland followed the decision in Martineau v Ministry of Justice (2015), which held that s 21(1) of the Employment Tribunals Act 1996 allowed an appeal to be brought even by someone not a party to the order appealed. Nor could it be said to be an abuse of process "for the party whose rights are said to have been infringed to seek to challenge the judgment issued by the judicial body responsible for the alleged errors".
The present proceedings had been begun at a time when the petitioner could have appealed the award. That being the case, Lord Pentland held, "I conclude that at the time when it was presented to the court the petition was incompetent because the petitioner had an extant statutory right of appeal against the order which it sought to have suspended. The time limit for instituting an appeal has now expired, but it remains open to the petitioner to seek an extension of it. The availability of these statutory mechanisms for challenging the order of the Employment Tribunal renders the petition incompetent in my opinion."
The fact that suspension of the order for re-engagement would cut across the operation of the statutory powers to award compensation was a powerful consideration militating against granting decree of suspension; "it points towards it being desirable that all aspects of the case should, if possible, be dealt with by the statutory system of employment (and employment appeal) tribunals".
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