United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NEITHER PRESENT NOR REPRESENTED AT THE HEARING
For the Respondent	NEITHER PRESENT NOR REPRESENTED AT THE HEARING


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal against a Decision of the Employment Tribunal sitting in Leeds promulgated on 27 June 2003 awarding the sum of £500 to Miss J Wolstenhome under section 11 of the Employment Relations Act 1999.
2. Section 10 of the 1999 Act introduced the right for a worker to be accompanied if he is required or invited by his employer to attend a disciplinary or grievance hearing. The right is not unlimited. The request to be accompanied must be reasonable: section 10(1)(b). Only a single companion is allowed: section 10(2). The companion must be a trade union official or certified by the union as being trained for the task or another of the employer's workers: section 10(3). But the right is a valuable one. The companion will be there to observe fair play and provide moral support. Moreover the employee may confer with the companion during the hearing and the companion may address the hearing: section 10(2).
3. If an employer threatens or fails to threaten to comply with his duty under section 10 the employee may make a complaint to an Employment Tribunal under section 11 of the 1999 Act. If the Employment Tribunal finds the complaint well founded it must order the employer to pay compensation in an amount not exceeding 2 weeks pay. This is a modest sum.
4. However the employee is also protected against action taken by his employer on the ground that he has exercised or sought to exercise his right under section 11. So is someone who acts or seeks to act as companion. If either is subjected to detriment by any act or deliberate omission of their employer they may make a complaint under section 48 of the Employment Rights Act 1996. If either is dismissed for that reason the dismissal will be unfair for the purpose of Part X of the 1996 Act. These provisions are found in section 12 of the 1999 Act.
5. Miss Jane Wolstenholme was employed by Refreshment Systems Ltd ("the Company") as a Business Development Team Leader. She was dismissed following a meeting on 16 September 2002. She asked to be accompanied at that meeting by a fellow worker who was ready and willing to attend. The meeting was to discuss Miss Wolstenholme's performance in her job, which involved managing a team. The fellow worker was one of her team. The Company would not allow her to be represented by that person on the grounds of embarrassment and confidentiality since there might be discussions about her and other colleagues. The Employment Tribunal found that the Company was in breach of its duty under section 10 and awarded compensation of £500 under section 11.
6. The Company has appealed. Neither party has attended the hearing or been represented at the hearing - a course which is entirely understandable given the small sums involved. However we have the Notice of Appeal, the Answer and submissions and letters from solicitors. Recently Miss Wolstenholme's solicitors have sought to amend the Answer. They take the point that the Employment Appeal Tribunal has no jurisdiction to hear the appeal. They point out that in. a recent review by the Department of Trade of Industry into the 1999 Act it was stated:

"There is currently no right of appeal to the Employment Appeal Tribunal against decisions taken by Employment Tribunals concerning complaints about the right to be accompanied. It is proposed that a right to appeal should be established."

7. The Employment Appeal Tribunal is a superior court of record: section 20(3) of the Employment Tribunals Act 1996. In relation to "all matters incidental to its jurisdiction" including the attendance and the examination of witnesses and the production and inspection of documents it has the same powers, rights, privileges and authority as the High Court in England or the Court of Session in Scotland: section 29(2).
8. Nevertheless the Employment Appeal Tribunal has limited jurisdiction, conferred by or under section 21 of the 1996 Act. As regards appeals from Employment Tribunals, its jurisdiction is conferred by section 21(1) of 1996 Act. As section 21(3) makes clear, jurisdiction to hear such appeals may be conferred by other statutes; but it is plain from section 21 that the Employment Appeal Tribunal does not have jurisdiction over Employment Tribunals unless there is a statutory provision conferring that jurisdiction. The list of proceedings in section 21 (1) is defined by reference to the statute or regulation which confers jurisdiction on the Employment Tribunal to hear proceedings. The list is lengthy. The full range of the Employment Tribunal's daily work is covered. But the Employment Relations Act 1999 is not in the list. So section 21(1) does not confer jurisdiction to hear an appeal against a complaint under section 11 of the 1999 Act, nor does the 1999 Act itself confer such a jurisdiction, nor does any other statute. There is simply no jurisdiction to hear an appeal against a complaint under section 11.
9. So extensive is the jurisdiction of the Employment Appeal Tribunal to hear appeals from Employment Tribunals that it is not surprising if practitioners overlook this point. Indeed, the Appeal Tribunal made an order for directions in this case on 1 August 2003 without appreciating there was no jurisdiction. Moreover there is a reported case of the Employment Appeal Tribunal under section 11 London Underground v Ferenc-Batchelor [2003] ICR 656.
10. Since the Employment Appeal Tribunal, although a superior court of record, is a court of limited statutory jurisdiction we take the view that no earlier mistake, agreement. Order or failure to take the point can confer jurisdiction - see Essex County Council v Essex Incorporated Congregational Church [1963] AC 808 at 819-820, 823-824, 827, 833-834. It is true that the Lands Tribunal considered in that case was an inferior court. but in our view the principles there set out apply to courts of limited statutory jurisdiction whether or not superior courts. If Parliament has not legislated to provide a right of appeal, respect for the democratic - process requires a court of limited statutory jurisdiction to take a point concerning its jurisdiction. We think it is our duty to decline jurisdiction. We do so.