The claimant claimed unfair dismissal and race discrimination. The ET decided at a pre-hearing review that the race discrimination claim was out of time, but the unfair dismissal was in time and therefore they had jurisdiction to hear the complaint. The judgment was given orally and expressed in writing under Rule 28. In light of issues which were thrown up in another case, the EJ decided to review her judgment a few months later, but did not actually alter her decision. Both parties had the opportunity to argue that it should be changed but either declined to do so or did not successfully do so. The unfair dismissal case then came before a different employment judge who came to the conclusion that the unfair dismissal claim was out of time and should therefore be dismissed. The claimant appealed on the grounds that the second EJ had no jurisdiction to determine the question of jurisdiction on time grounds, it already having been decided.

The EAT allowed the appeal quoting the case of Radakovits which demonstrated that, where there has been a final determination of a particular issue in the proceedings within rule 28, the court 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.

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Appeal No. UKEAT/0054/11/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 May 2011

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (SITTING ALONE)

MR E KUDJODJI (APPELLANT)

LIDL LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS HARRIET GORE (of Counsel)

Instructed by:
Rock Solicitors
4-6 Westbury Avenue
Turnpike Lane
Wood Green
London
N22 6BN

For Respondent
MR MICHAEL CREAMORE (Solicitor)

Gregsons Solicitors
St. Christopher's House
Tabor Grove
Wimbledon
London
SW19 4EX

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.

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.

1. 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."

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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).

1. 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.

1. 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."

1. 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.

1. 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 [...]"

1. 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.

1. 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.

1. 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."

1. 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."

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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 [1998] 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.

1. 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.

1. 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.

1. 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.

1. 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.