Radakovits v Abbey National Plc

A statutory time limit which provides that an employment tribunal shall not consider an unfair dismissal claim unless it was presented in time governs the tribunal’s jurisdiction. Agreement, waiver or estoppel cannot confer jurisdiction.

A tribunal may revisit jurisdiction where an earlier chairman acted on the assumption that jurisdiction existed but entered no written judgment determining that issue. A final determination recorded as a judgment could be reopened only on review or appeal.

Tribunals must guard against exceeding their jurisdiction, but need not investigate every merely potential jurisdictional issue. When dealing with an unrepresented party, a tribunal may impartially explain the issues and the possible consequences of failing to give evidence.

The appellant presented an unfair dismissal claim which appeared to be one day outside the three-month time limit. The employer initially disputed jurisdiction but later stated that time had been extended under regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The scheduled preliminary hearing was vacated, case-management directions were made and the parties prepared for a merits hearing.

At that hearing, the employment tribunal raised jurisdiction of its own motion. It held that the appellant lacked reasonable grounds for believing that a dismissal procedure remained in progress when the ordinary time limit expired. The Employment Appeal Tribunal dismissed his appeal.

The central issues in the Court of Appeal were whether the tribunal could reopen jurisdiction, whether the employer could resile from its earlier position, and whether the appellant had received a proper opportunity to address jurisdiction.

1. Appeal dismissed unanimously. The time limit for presenting an unfair dismissal claim governed the employment tribunal’s jurisdiction. Section 111(2) of the Employment Rights Act states that a tribunal shall not consider a claim unless it is lodged in time. Jurisdiction could not be created by the employer’s agreement, abandonment of an objection or waiver. The tribunal was therefore entitled, and where appropriate obliged, to raise the issue of its own motion.

2. The tribunal could revisit jurisdiction because no final determination had been made in May 2006. A declaration that the claim was in time would have been a judgment under rule 28 of the Employment Tribunal Rules of Procedure and could then have been reopened only on review or appeal. No written judgment under rule 29 or reasons under rule 30 had been entered. Vacating the preliminary hearing and making case-management directions on the assumption that jurisdiction existed did not amount to a binding judgment.

3. The employer could not be estopped from presenting relevant evidence and argument once the tribunal had lawfully reopened jurisdiction. Its earlier acceptance of jurisdiction could not bind the tribunal, despite the resulting sense of injustice and the opportunistic character of the employer’s change of position.

4. The statutory grievance procedure did not assist the appellant because regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 excluded its application where there had been a dismissal. To obtain an extension under regulation 15(2), the appellant had to establish reasonable grounds for believing that a dismissal procedure remained under consideration. Evidence of his personal state of mind was therefore important.

5. Employment tribunals must protect against exercising jurisdiction where statutory conditions are unmet, but they are not required to search for every possible jurisdictional defect. If a jurisdictional question is decided, the decision and brief reasons should be recorded. If it remains open, that should be made clear. A tribunal may also explain the relevant issues and the possible prejudice from failing to give evidence to an unrepresented party, provided that it remains impartial and gives no guidance about what evidence should be given.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the conclusion that the employment tribunal was entitled to determine jurisdiction.
2. Employment Appeal Tribunal: Dismissed the appeal. It held that the employment tribunal was required to address a live jurisdictional issue and had reached a sustainable conclusion on the time limit.
3. Employment tribunal: Raised jurisdiction at the intended merits hearing and held that the unfair dismissal claim was out of time. It found no reasonable grounds for believing that the relevant dismissal procedure remained in progress when the ordinary time limit expired.