The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to jurisdiction, there was no requirement for it to have leave to appeal.
Held: Meeting the continuous employment criteria is not a precondition to the Employment Tribunal having jurisdiction, but proof of meeting the qualifying period is a precondition to a finding of unfair dismissal: ‘the right under Section 67 to present a complaint does not depend upon prior proof that Section 54 applies. Jurisdiction to consider the complaint is conferred by Section 67. If, on the evidence, the qualifying period is not established, the Applicant has not established the right conferred by Section 54. It does not follow that a Tribunal decision that the right exists, made upon a complaint being presented to it and upon the evidence, was made without jurisdiction if it subsequently transpires that the qualifying period had not been served.’
Judges:
Pill LJ
Citations:
Times 06-Dec-1994, Ind Summary 09-Jan-1995, [1994] UKEAT 4 – 93 – 1310
Links:
Statutes:
Employment Protection (Consolidation) Act 1988 64(1)(b)
Jurisdiction:
England and Wales
Citing:
Cited – Standing v Eastwood and Co 1912
A court’s jurisdiction cannot be created by the contract or consent of the parties. . .
Cited – House v Emmerson Electric Industrial Controls EAT 1980
An unsuccessful Applicant sought leave to argue a jurisdictional point which he had not raised at the hearing before the Industrial Tribunal.
Held: Talbot J allowed the point to be raised saying: ‘For instance, if an Industrial Tribunal had . .
Cited – Gardiner v London Borough of Merton 1980
The continuity of the period of employment is not broken when an employee is taken into the employment of an ‘associated employer’ of the first employer but the claimant can take advantage of that only if at least one of the employers is a limited . .
Cited – Russell v Elmdon Freight Terminal Limited EAT 1989
The claimant faced a finding that the Industrial Tribunal did not have jurisdiction. He sought leave to appeal to establish by another route under Schedule 13, the necessary continuity of employment under Section 64(1)(a).
Held: Continuity of . .
Cited – British Midland Airways Limited v Lewis EAT 1978
An airline pilot complained that he had been unfairly dismissed and the Industrial Tribunal, without considering whether or not they had jurisdiction to hear the complaint on the ground that the employee might ordinarily work abroad, found that the . .
Cited – Barber v Thames Television plc EAT 1991
The EAT has a power exceptionally, to receive an argument which had not been put to tribunal. Knox J said: ‘We do not accept the proposition that any and every contention by a party to an appeal that that party by calling further evidence can show . .
Cited – Barber v Thames Television plc CA 1992
The applicant was ‘precluded by Section 64(1)(b) from making his complaint to the industrial tribunal’ The appeal succeeded. . .
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 19 May 2022; Ref: scu.83022