When does delay become an appealable point?

Farore Law is currently representing a senior employee of a bank in an Employment Appeal Tribunal (“EAT”) appeal against an Employment Tribunal’s decision to strike-out parts of his claim which were ostensibly out of time. Although the preliminary hearing in the Employment Tribunal took place in July 2023, it was only in October 2024 that the Employment Tribunal handed down judgment to the parties. This delay was by the Judge’s personal circumstances and not attributable in any way to the parties’ conduct. 

One of the grounds of appeal which we are pursuing (and made it past the sift) is that the Judge’s delay interfered with the Claimant’s right to a fair trial under Article 6 ECHR.

In this blog, we examine the circumstances where judicial delays can give rise to a breach of Article 6 ECHR, the ECHR being unaffected by Brexit.

What is protected under Article 6 ECHR?

Article 6(1) ECHR provides that “[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. This requires courts and tribunals to ensure that they operate a fair procedure.

When can a delay give rise to a breach of Article 6 ECHR?

The mere fact that there is a delay in the tribunal promulgating its decision does not automatically amount to a serious procedural error and a breach of Article 6 ECHR. Article 6 ECHR is only breached where, owing to an unreasonable delay, there is a real risk that a party has been in substance denied or deprived of their right to a fair trial and it would be unfair or unjust to allow the delayed decision to stand. Whether a delay is unreasonable or not requires consideration of the reasons for the delay and the complexity of the matter under judgment.

The threshold for a delay to amount to a breach of Article 6 ECHR is a high one. For example, in Grosvenor v Governing Body of Aylesford School EAT 0001/08, an Employment Tribunal case was originally listed for 15 days but actually lasted 40 days (with the hearings taking place between 7 November 2005 and 13 October 2006). The tribunal’s panel then spent 26 days deliberating (with meetings in Chambers taking place between 30 October 2006 to 3 September 2007) before delivering its judgment on 28 September 2007. Although the EAT accepted that a delay of one year in promulgating a judgment ought never to happen, there was no breach of Article 6 ECHR given that there was not a large gap in time between the tribunal’s deliberations and delivery of its judgment (thereby reducing the risk that the Employment Tribunal forgot or overlooked key evidence when promulgating its judgment). In that case, the Employment Judge was a fee-paid judge, which may be of relevance (in explaining the delays), however that is the case for most Employment Tribunal hearings.

This is to be contrasted with the facts of Somjee v United Kingdom 2002 IRLR 886, where the European Court of Human Rights (“ECtHR”) held that a delay in employment tribunal proceedings amounted to a breach of Article 6 ECHR. The facts of Somjee are interersting, although arguably extreme – there, the Claimant had launched various sets of proceedings against the employer, which had taken nearly 9 years to resolve. 

The delays in Somjee were attributed to the fact that the Claimant had brought a variety of different proceedings against the Respondent, which were then coupled with a series of appeals to the EAT and the Court of Appeal. The delays were so significant that what started off as an employment tribunal claim being issued in October 1988 was only concluded in May 1998.

Although the ECtHR acknowledged that the complexity of the proceedings and the conduct of the applicant resulted in delays, it went on to state that a lot the delays were caused by the conduct of the Employment Tribunal/EAT/Court of Appeal.

In light of the “lamentable history of delays”, the ECtHR concluded that there had been a violation of Article 6(1) ECHR. Somjee is therefore a useful authority when considering the cumulative effect of delays over a series of hearings.

What to take away

The mere fact that there are delays in the tribunal process does not automatically follow that there is a breach of Article 6(1) ECHR, as a breach only arises if the court concludes that the delay has in substance deprived the litigant of their right to a fair trial and that it would be unjust to let the delayed decision stand in those circumstances. In addition, as illustrated in Somjee, it is relevant to consider whether the delay was attributed by the parties’ conduct or the tribunal itself. It is only in cases where some (or all) of the delays were attributed to the tribunal that there can be an argument of whether Article 6 ECHR was infringed. 

An example of where it can be unjust to allow a delayed decision to stand is with the appeal that Farore Law is currently acting on. In addition to the Tribunal taking nearly 15 months to promulgate the judgment (a delay which was not caused by the parties’ conduct), the judgment contains a number of serious errors of law. These included that it was not Meek-compliant, in that a reader could not understand how the judge reached the conclusions they did. The judge also failed to look at all of the evidence of alleged discrimination in the round, which may have been a consequence of the judge forgetting the evidence that was heard in the preliminary hearing. 

With an increasingly unsustainable backlog in both the Employment Tribunal and the EAT, it is becoming more common for litigants to experience significant delays in the tribunal process. In many cases, these delays will be inevitable regardless of the parties’ conduct. We expect there to be an increase in parties deploying Article 6 ECHR as a ground for appeal in future cases given that tribunals are currently struggling to manage a large volume of cases with very limited judicial resources. However, the delays right now in the EAT are significant and the party may be loathed to appeal a preliminary hearing judgment on an Article 6 point, as this may result, ironically, in further delay!  

Farore Law is a firm of specialist employment lawyers, with a wealth of experience in Employment Appeal Tribunal litigation. Please contact us if you require legal advice.