Weedon v Pinnacle Entertainment Ltd

An Employment Judge sitting alone has jurisdiction only over the complaints specified in section 4(3) of the Employment Tribunals Act 1996. A complaint for a protective award under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 is distinct from a complaint under section 192 and is outside that jurisdiction. A decision by a judge alone on a section 189 complaint is therefore made without jurisdiction and must be set aside. The matter must be remitted to a full Employment Tribunal where factual issues, including whether it was reasonably practicable to present the claim in time, require determination.

Employees of Pinnacle Entertainment Ltd brought out-of-time complaints for protective awards after the company entered administration and numerous employees were made redundant. An Employment Judge sitting alone upheld the in-time claims but dismissed the appellants’ claims on limitation grounds. The Employment Judge later confirmed that the claims had been dismissed for want of jurisdiction.

The appeals were initially rejected on paper but proceeded after a rule 3(10) hearing. At the full hearing, the appellants raised a jurisdictional objection: whether an Employment Judge sitting alone could determine complaints under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992.

1. The appeals were allowed. The Employment Judge had determined complaints under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 while sitting alone, although section 4(3) of the Employment Tribunals Act 1996 did not confer jurisdiction to do so. The statutory complaints under sections 189 and 192 were distinct: section 192 complaints could be heard by a judge alone, whereas section 189 protective-award complaints could not.
2. The jurisdictional objection was entertained although raised for the first time on appeal because it required no further evidence and was potentially decisive. The approach was consistent with Insaidoo v Metropolitan Resources North West Ltd UKEAT/0365/10/DA.
3. The EAT could not determine the limitation issue itself under section 35 of the Employment Tribunals Act 1996, since its powers did not include determining a section 189 complaint while sitting alone. The claims were therefore remitted to a full Employment Tribunal for rehearing.
4. The Tribunal was not bound by the EAT’s observations, but there was at least a highly arguable case that it had not been reasonably practicable to present the claims within time, having regard to the appellants’ explanations and the information available from the Tribunal. That issue remained for the full Tribunal.

• Ashford Employment Tribunal: Judgment dated 26 April 2010, with Reasons dated 14 May 2010. Claims for protective awards brought within time were upheld, while the appellants’ out-of-time claims were dismissed.
• Employment Appeal Tribunal: The appeals were initially rejected on paper under rule 3(7), but proceeded after a rule 3(10) hearing. The EAT allowed the appeals and remitted the claims to a full Employment Tribunal.