Aparau v Iceland Frozen Foods Plc

A statutory employment tribunal exhausts its jurisdiction when it delivers a final decision, subject only to its limited review power and any remission by the Employment Appeal Tribunal. A remission confined to a particular issue revives jurisdiction only to that extent. The tribunal cannot reopen other issues or permit a party to introduce them by amendment. Consent, acquiescence and failure to object cannot enlarge jurisdiction conferred by statute and the remission. A decision outside the remission is a nullity. A jurisdiction point may be raised for the first time on appeal where it requires no further evidence.

The appellant resigned after being instructed to transfer from Wood Green to East Finchley. Her original contract contained no express mobility clause. An industrial tribunal initially held that she had accepted new contractual terms by performance, and alternatively that a mobility term was implied and the transfer was not repudiatory. The Employment Appeal Tribunal rejected those grounds but remitted only the issue whether an express mobility clause had been incorporated.

The employer later conceded that no express variation existed, but the industrial tribunal nevertheless considered whether the dismissal was fair under the Employment Rights Act 1996 and held that it was not unfair. The Employment Appeal Tribunal dismissed a further appeal. The central issue before the Court of Appeal was whether the tribunal had exceeded the limited remission and whether its decision on fairness was therefore invalid.

The Court of Appeal allowed the appeal unanimously. Moore-Bick J gave the principal judgment, with which Mance LJ and Peter Gibson LJ agreed.

1. Exhaustion of jurisdiction. An industrial tribunal exhausts its jurisdiction when it delivers a final decision disposing of the issues before it. Apart from the limited review power under Rule 11 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, it cannot reopen or reconsider the proceedings unless the case is remitted by the Employment Appeal Tribunal.
2. Scope of remission. The Employment Appeal Tribunal’s power under section 35(1)(b) of the Industrial Tribunals Act 1996 may produce a general or limited remission. Where the remission concerns specified issues, the tribunal’s revived jurisdiction is confined to those issues. The principle in Interbulk Ltd v Aiden Shipping Co Ltd (The “Vimeira” (No.1)) [1985] 2 Lloyd's Rep. 410 applied.
3. No enlargement by consent. The parties could not, by agreement, acquiescence or failure to object, confer on a statutory tribunal jurisdiction beyond that provided by the statutory scheme and the remission. Mance LJ referred to R. v. Judge Pugh [1951] 2 K.B. 623. He additionally explained that cause-of-action estoppel, issue estoppel and the principle in Henderson v. Henderson (1843) 3 Hare 100 did not govern these circumstances.
4. Application. The first remission was limited to whether the express mobility clause had been incorporated. The fairness of any dismissal had not previously been raised and fell outside the remission. The industrial tribunal therefore had no jurisdiction to determine it, and its decision on fairness was a nullity. The proper course, if the employer wished to raise that issue, was to seek an appropriate extension of the remission from the Employment Appeal Tribunal.
5. Late jurisdiction point and outcome. The court permitted the jurisdiction argument to be raised for the first time because it directly concerned jurisdiction and required no additional evidence. In light of the concession that there was no express mobility clause, the dismissal was declared unfair. The tribunal’s and Employment Appeal Tribunal’s orders were set aside.

Peter Gibson LJ added that the employer had not attempted to establish the reason, admissibility or reasonableness required by the statutory predecessor to section 57(1) and (3) of the Employment Protection (Consolidation) Act 1978. He regarded that as an additional reason why the dismissal would have been unfair, but the point was unnecessary once the jurisdiction issue was decisive.

1. Court of Appeal: Allowed the appeal, set aside the orders below and declared the dismissal unfair: [1999] EWCA Civ 3047.
2. Employment Appeal Tribunal, second appeal: Dismissed the appeal and held that a repudiatory breach could nevertheless result in a fair constructive dismissal, and that the tribunal could determine fairness.
3. Employment Appeal Tribunal, first appeal: Set aside the industrial tribunal’s reasoning on the three original grounds and remitted only the issue whether an express mobility clause had been incorporated.
4. Industrial Tribunal: Initially rejected the constructive-dismissal claim. On remission, it considered fairness and held that the dismissal was not unfair.