SUMMARY
PRACTICE AND PROCEDURE –
Preliminary issues
JURISDICTIONAL POINTS –
Claim in time and effective date of termination
Employment Tribunal declared that it had jurisdiction to consider
a claim for unfair dismissal, rejecting arguments that time grounds excluded
it. On review, it upheld this decision. A decision was made under rule 28
ET Procedure Rules. A subsequent Employment Judge, due to hear the
substantive claim on its merits, reconsidered the question of jurisdiction and
concluded there was none. An appeal to the effect that the second EJ had no
jurisdiction to determine the question of jurisdiction on time grounds (it
having already been decided) was allowed.
THE HONOURABLE MR
JUSTICE LANGSTAFF
Introduction
1.
It is a cardinal principle that jurisdiction, whether on a court or on a
tribunal, cannot be conferred by the agreement of the parties. It is likewise
a cardinal principle that, once a final as opposed to an interlocutory Judgment
or order has been drawn up and perfected, to use the expression in the Civil
Procedure Rules (CPR), or its equivalent in the Employment Tribunal (that is,
made under rule 28 of the Employment Tribunals (Constitution and Rules of
Procedure) Regulations 2004, it cannot be altered except by appeal or (where
there is a power to do so) on review. It is an aspect of the central principle
that there is a need for finality in litigation that in the Employment Tribunal
field there is no power in one Employment Tribunal to second‑guess a
final order or decision which has been made by another Employment Tribunal.
This case demonstrates the need to have careful regard to those principles. It
arises out of facts which began as entirely ordinary, but have become clearly
unusual.
The facts
2.
The appeal is in form a decision against a decision of Employment Judge Roper,
sitting on his own, at the Employment Tribunal in Stoke‑on‑Trent.
Reasons for his decision were given on 19 November 2010. He
determined that the Claimant’s claim for unfair dismissal was out of time and
was therefore to be dismissed. The problem with that decision, which otherwise
on the face of it might seem to be unremarkable, was that in the same case
between the same parties Employment Judge Warren at Stoke‑on‑Trent
had, on 22 January 2010, conducted a pre-hearing review at which the
issue of the jurisdiction of the Employment Tribunal to consider the Appellant’s
complaint of unfair dismissal came for determination. A decision as to that
matter was a decision which would be final in its nature, as opposed to
interlocutory. On 22 February 2010, the Judgment which she gave
orally was expressed in writing under rule 28. That said, as follows:
“1. The Claimant was dismissed and the effective date of
determination was 11 June 2009.
2. The claim of unfair dismissal was submitted in time and the
Tribunal has jurisdiction to hear it.
3. The claim of race discrimination alleges discrimination to
mid-February 2009. There was no grievance in that regard within the terms
of Section 32 of the Employment Act 2002. This Tribunal has no
jurisdiction to hear the claim.”
3.
Subsequently, it appears that Judge Warren became aware of a
decision made by this Tribunal in the case of Benjamin-Cole v Great Ormond Street Hospital for Sick Children NHS Trust [2010] EAT/0356/09/DA.
In light of the issues which that Judgment threw up, she determined of her own
accord to review the decision which she had reached on 12 January 2010,
and proposed to do so under rule 34(5) of the Rules of Procedure.
4.
When she did so, on 15 July 2010, she set out the issues to be
resolved, which not only related to race discrimination but to a claim of
unfair dismissal. She determined, so far as unfair dismissal is concerned,
that the decision had been correct. It was not, therefore, altered on review,
and the original order stood. She determined, as it happens, that there was no
jurisdiction to hear the claim of race discrimination. Thus, as at the date of
promulgation of those reasons, which was 6 October 2010, there had
been a final decision by the Employment Tribunal. An order had been made which
contained a declaration that the Tribunal had jurisdiction. That had been made
as early as February 2010; it had been reviewed, but not altered; it had
not been appealed. Both of the parties had opportunities to argue that it
should be changed, but declined to do so or did not successfully do so.
5.
That was the position when the case came before Employment Judge Roper
on 16 November 2010. In his decision he first summarised the
circumstances which I have set out, noting that there had been no further
application to review or appeal the review Judgment, then in paragraph 3
said this:
“The effect of the Review Judgment was that the racial
discrimination claim was dismissed, but that it was accepted by the parties
that the unfair dismissal claim was within time. The unfair dismissal time
point was not argued in detail before Employment Judge Warren. On
considering the case papers today, which was the hearing date listed for the
substantive unfair dismissal claim, it seemed to me that the unfair dismissal
claim was potentially out of time, and I was concerned that the Tribunal did
not have jurisdiction to hear the claim. The parties agreed that I should hear
the matter now as a further pre-hearing review on whether the unfair dismissal
claim was out of time, or whether it could proceed to be heard.”
He then took evidence and determined that issue; in a carefully‑reasoned
decision, he came to the conclusion that the unfair dismissal claim was out of
time, and should therefore be dismissed.
6.
The first question for my determination was whether applying the
cardinal principles, as I have called them, with which I began this Judgment,
Judge Roper had himself any jurisdiction to consider the question of
jurisdiction to hear the claim for unfair dismissal. It is accepted, rightly in
my view, and responsibly, by Mr Creamore, who appears on behalf of the
Respondent, that Judge Roper should not have done what he did. He had no
jurisdiction to determine an issue which had already been determined by a prior
Employment Tribunal, and as to which a decision had been made and recorded in
accordance with rule 28.
7.
He was plainly right to come to accept that for these reasons, which I
set out for future reference by any other Tribunal judge who may worry that
jurisdiction to hear a claim cannot be conferred by agreement, and is consequently
something about which the Tribunal requires to be satisfied for itself, and may
in consequence be tempted to hear again an argument which has already been
heard and determined between the same parties by an earlier Tribunal.
The law
8.
The general principles applicable to civil litigation are well
established. They are to the effect that a judge can always reconsider a
decision until the order has been drawn up or perfected (see Millensted v Grosvenor House (Park Lane) Ltd
[1937] 1 KB 717). That was a decision under the rules of the Supreme Court
before the Civil Procedure Rules were introduced.
9.
As to the CPR, the cases up to the date of the decision in Robinson v Bird
[2003] EWCA Civ 1820 were reviewed comprehensively in the Judgment of May LJ
(as he then was).
10.
He drew attention to the decision of the Court of Appeal following the
introduction of the CPR in the case of Stewart v Engel
[2000] 2 All ER 518. That decision itself considered earlier authorities which
had been collated by Neuberger J (as he then was) in the case of Charlesworth v Relay Roads Ltd
[2000] 1 WLR 230. Although there was a disagreement between the members of the
court in Stewart, the majority, Sir Christopher Slade
and Roch LJ, were agreed that the general principle that had existed and
been recognised under the Rules of the Supreme Court continued to apply after
the introduction of the CPR.
11.
At paragraph 80 of the Judgment in Robinson, the essence
of what Sir Christopher Slade and Roch LJ said was conveyed in
these terms:
“Since there must be some finality in litigation and litigants
cannot be allowed unlimited bites at the cherry, it is not surprising that,
according to the authorities, there are stringent limits to the exercise of the
discretion conferred on the court by the Re Barrell Enterprises
[1973] 1 WLR 19 jurisdiction. Russell LJ had said at page 23 in
that case:
‘When oral Judgments have been given, either in a court of
first instance or on appeal, the successful party ought, save in the most
exceptional circumstances, to be able to assume that the Judgment is a valid
and effective one.’
This principle is to have greater application where the Judgment
is a formal written Judgment in final form handed down after the parties have
been given the opportunity to consider it in draft and make representations on
the draft. At least until the coming into force of the CPR, the Barrell
decision would have been clear authority binding on this court, with the
proposition that only in exceptional circumstances could it be proper for a
judge to exercise his discretion under the relevant jurisdiction to vary a
previous order once such an order had been made. It may be that now, having
regard to the CPR, [...] the Barrell decision is no longer strictly
binding authority. Nevertheless, all the considerations which led the court to
decide as it did in that case still apply.”
12.
I emphasise that for present purposes, what the court is talking about
here is a judge’s right to review and change his own decision prior to the
order having been drawn up and perfected. After it has been drawn up and
perfected, there is no such right. The discussion was whether there was any
right to change one’s mind and decision after a judge had given an oral
Judgment but before the order was drawn up.
13.
At paragraph 83, it was summed up in these terms: that it was clear
that the majority decision in Stewart was that it required
exceptional circumstances to exercise the jurisdiction to reopen and alter a
Judgment and order, albeit not yet perfected, once they had been given and
made. A reason for this given by all three members of the court in Stewart
and endorsed in Robinson appeared from the fourth proposition
expressed in Charlesworth:
“It is inherently contrary to the public interest and unfair on
the other side that an unsuccessful party should be able to raise new points or
call fresh evidence after a full and final Judgment has been given against
them. It would generally require an exceptional case before the court is
prepared to accede to an application [...]”
The Appellant’s case
14.
That position, generally applicable to civil appeals, is that which
applies also in the employment jurisdiction. That is amply demonstrated by the
case to which Ms Gore, for the Appellant, draws my attention: that of Radakovits v Abbey National Plc
[2009] EWCA Civ 1346; [2010] IRLR 307.
15.
The Court of Appeal there considered a case in which a Tribunal had
considered the question of jurisdiction as a preliminary issue. It heard
evidence, and it considered that there was no jurisdiction. This was despite
the fact that, at an earlier stage, the employer in that case had stated 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 in that case 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 matter came before the Court of Appeal. Here there had been
no order or Judgment on the question of jurisdiction; the matter had simply not
been argued by concession by the employer.
16.
At paragraph 16 in the Judgment of Elias LJ, with which
Aikens LJ and Mummery LJ agreed, he said this:
“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.”
17.
Then, in paragraph 18, he said this by way of qualification:
“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.”
18.
Those passages demonstrate that the principle generally applicable to
civil appeals applies to the employment jurisdiction. It demonstrates that a
Tribunal should think long and hard before coming to a determination in respect
of a matter which has been considered by a previous Tribunal but about which
there has been no Judgment or order; but where there has been a final
determination of a particular issue in the proceedings within rule 28, it
has no right to interfere no matter how strongly the subsequent Tribunal or Tribunal
Judge may feel that an error of law has been made, or a potential injustice has
been caused. The right to interfere to remedy a supposed error or injustice does
not lie in a subsequent Tribunal. It rests with the appellate courts, or, if
there should be a review, and if the original Employment Judge is willing to
consider a review, on review under rule 34, but it is not for the second
Tribunal to consider.
19.
I suspect that the Employment Judge was so concerned to ensure that he
had jurisdiction to hear the claim on the merits that he overlooked the plain fact
that he had, on the principles and cases that I have set out, and as is rightly
conceded by the Respondent in argument, no jurisdiction here to consider the
question of jurisdiction on the basis of time, because that had already been
determined by a final order. It follows, as it seems to me, that this appeal
must be allowed.
The Respondent’s case
20.
However, Mr Creamore submits that this court is entitled to
exercise its powers as the Employment Tribunal would have been entitled
properly to exercise its. He notes first that the parties had agreed to the
matter going on before Judge Roper on the basis of jurisdiction. Having
agreed to that course, they should not be allowed effectively to resile from
that agreement. This court should, therefore, either uphold the agreement
below on the basis that the matter had to be determined; Judge Roper could
have adjourned the hearing and sent the matter back, or at least invited
Judge Warren to reconsider her earlier decision on a further review; and
there was thus practical sense in the parties before Judge Roper arguing
the point there and then before him.
21.
He complains, in effect, about the Appellant having had his cake and
still wishing to eat it by arguing the matter in full before Judge Roper,
losing, and then seeking to appeal upon the basis that Judge Roper should
never have heard the argument in the first place. I need only observe that counsel,
for such it was who represented the Appellant, not Ms Gore who appears
today, but instructed by the same solicitors, did not cover himself in glory,
nor, would it appear, did his solicitor’s representative, who was at the
Tribunal so I am told.
22.
Be that as it may, it seems to me that this is exactly the same position
as the courts have discussed in the context of conferring jurisdiction by
agreement or waiver. Just as in Radakovits there was no room for
estoppel, so too in my view there is no room here for estoppel or waiver, or
the agreement of counsel on behalf of the Appellant, however ill-advised, to
operate by conferring a jurisdiction which the Judge simply did not have. I
would observe, in passing, that it is the responsibility of both parties’
representatives to alert a Tribunal judge to the possibility that he may have
no jurisdiction to do what he proposes to do, and to be ready to explain why.
The responsibility is thus not solely that of the Appellant here, but also that
of the Respondent, though it is fair to point out that the Respondent was not
represented by a legal professional at the Tribunal, and therefore less might
have been expected, although that does not entirely relieve the Respondent of
responsibility for permitting Judge Roper to take the course that he
proposed without showing him the error of his ways.
23.
Accordingly I have some sympathy with the Employment Judge, but it seems
to me that I cannot uphold his decision upon the basis of any supposed
concession or agreement. This is not in the same category as those concessions
that may be withdrawn to which reference is made in the skeleton argument
carefully prepared by the Respondent seeking to uphold the decision: Secretary
of State for Health and Others v Rance and Others [2007] EAT/0060/06/ZT,
heard at this Tribunal before HHJ McMullen QC, referring to
authorities including Jones v Governing Body of Burdett Coutts School
[1988] IRLR 521 and Glennie v Independent Magazines UK
[1999] IRLR 719 - see his observations at paragraph 50. Those
observations related to whether a new point of law may be argued in this
Tribunal, where that point of law had not been argued below. They do not deal
with a situation where an argument has been heard, has been determined and is
revisited by a subsequent Tribunal of the equivalent jurisdiction. I thus
derived no assistance from that authority in the present context.
24.
Mr Creamore argues that I should, in exercise of the Employment
Appeal Tribunal’s jurisdiction, invite Judge Warren to take another look
at her decision and exercise her power of review again. I decline to do so.
Conclusion
25.
As I began this Judgment, so I end it, with a recognition of the
importance of finality in litigation. The order that Judge Warren made,
which at the time the Respondent had an opportunity to argue should be
revisited and altered, was not altered even on review in which the Respondent participated.
It has not been appealed, nor has there been any further review yet sought. It
would now be far too late to appeal it.
26.
Moreover, in the Respondent’s response to this appeal, there was no
confession of the illegality of that which Judge Roper did, coupled with
an invitation to hear and determine an appeal out of time against Judge Warren’s
decision. Finality would suggest that the original decision should simply not
be revisited. I make no final determination on this because it is open plainly
to the Respondent to approach Judge Warren to that effect, but to do so is
to divert attention on what would otherwise be the merits of this case into a
procedural matter which has now occupied the courts for over a year and a
half. It is no credit to any system which depends upon finality in
decision-making that that should be the case.
27.
I therefore decline to make any recommendation or order of that sort,
and shall simply say that the appeal is allowed for the reasons I have given;
the effect is that the claim is, as it stands, restored for hearing before the
Tribunal upon the merits of the unfair dismissal claim.
