The Tribunal had considered the question of jurisdiction as a preliminary issue. It heard evidence, and considered that there was no jurisdiction. This was despite the fact that, at an earlier stage, the employer had said that it would not contest the jurisdictional issue on the basis that the claim was out of time, and it was on that basis that an Employment Tribunal had made some case management directions. The employers had effectively conceded jurisdiction; that had led the Appellant to prepare for a hearing on the merits, and it had only been at the last moment that the Tribunal had, by considering jurisdiction and finding against him, deprived him of the right to be heard. The employee appealed. The tribunal is required to take of its own motion any issue of jurisdiction if it is concerned as to whether it can properly deal with the case.
Elias LJ said: ‘The first issue, therefore, is whether the Tribunal was entitled to re-open the question of jurisdiction. I have come to the clear conclusion that they were. There is plenty of authority that confirms that the time limits in the context of unfair dismissal claims go to jurisdiction, and that jurisdiction cannot be conferred on a Tribunal by agreement or waiver: see Rogers v Bodfari (Transport) Ltd [1973] IRLR 172, approved by the Court of Appeal in Dedman v British Building and Engineering Appliances [1973] IRLR 379). Rogers is a particularly powerful case because the point on jurisdiction was not heard until after the tribunal had considered the merits of the case. In Dedman, Lord Denning pointed out that even if an employer actively wishes to have the case heard by a tribunal, the tribunal still cannot hear it if it does not have jurisdiction . . It follows that the fact that the employers initially accepted that the tribunal had jurisdiction is not sufficient to confer jurisdiction on the tribunal. It seems to me clear, contrary to the view of the employment tribunal, that in May 2006 the employers had adopted the clear view that the tribunal had jurisdiction to deal with their claims. Nonetheless, even if they were purporting to abandon any opposition to jurisdiction at that time, that does not bind the tribunal. The question of jurisdiction must be taken by a tribunal if it considers that the issue is properly a live one.’ Though: ‘The tribunal in April 2008 would not, however, have been entitled to re-open the question if the Employment Tribunal in May 2006 had issued a declaration that the claim was in time. The decision would then have been a Judgment of the Tribunal within the meaning of rule 28 of the Employment Tribunal Rules of Procedure. It would have been ‘a final determination of . . a particular issue in the proceedings.’ As such, it could only have been re-opened on an application for review or on appeal. Another tribunal would not have been entitled to reopen such a determination simply because it disagreed with the conclusion.’
Judges:
Elias, Mummery, Aikens LJJ
Citations:
[2009] EWCA Civ 1346, [2010] IRLR 307
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Radakovits v Abbey National Plc EAT 4-Feb-2008
EAT Jurisdictional Points
Extension of time: reasonably practicable
Extension of time: just and equitable
The Employment Tribunal was correct to require satisfaction that it had jurisdiction.
Cited by:
Cited – Molaudi v Ministry of Defence EAT 15-Apr-2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously . .
Cited – Birmingham City Council v Abdulla and Others SC 24-Oct-2012
Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 11 August 2022; Ref: scu.384359