Richardson v Pinnacle Entertainment Ltd

An Employment Judge sitting alone has no jurisdiction to determine complaints for a protective award under section 189 of the Trade Union and Labour Relations Consolidation Act 1992. Section 4(3) of the Employment Tribunals Act 1996 confers jurisdiction on a judge sitting alone for complaints under section 192, but not section 189. A judgment given without that jurisdiction cannot stand. The appeal must therefore be allowed and the claim remitted for rehearing by a full Employment Tribunal. The full Tribunal must determine whether it was reasonably practicable to present an out-of-time protective-award claim within the prescribed period.

Employees of Pinnacle Entertainment Ltd brought claims for protective awards after the company entered administration and approximately 100 employees were made redundant. Their claims were presented outside the primary limitation period. An Employment Judge sitting alone dismissed the out-of-time claims, having apparently not considered explanations that had been sent to the Tribunal.

The claimants appealed. The Employment Appeal Tribunal permitted the appeals to proceed after an initial paper rejection. At the full hearing, the claimants raised a new jurisdictional objection: the Employment Judge had no power to determine section 189 complaints while sitting alone. The central issue was whether the original decision was jurisdictionally valid and, if not, what order should follow.

1. Appeals allowed. The Employment Judge sitting alone had no jurisdiction to determine the claimants’ complaints for protective awards under section 189 of the Trade Union and Labour Relations Consolidation Act 1992.
2. Section 4(3) of the Employment Tribunals Act 1996 draws a material distinction between section 189 complaints and section 192 complaints. A section 192 complaint may be heard by an Employment Judge sitting alone. A section 189 complaint may not. The approach in Insaidoo v Metropolitan Resources North West Ltd, UKEAT/0365/10/DA, was followed.
3. The jurisdictional point was entertained although raised for the first time at the hearing. It required no further evidence and was potentially decisive, consistent with the approach referred to in Glennie v Independent Magazines (UK) Ltd, [1999] IRLR 719.
4. The Employment Appeal Tribunal could not determine the limitation issue itself under section 35 of the Employment Tribunals Act 1996, because that would require the exercise of the powers of an Employment Tribunal in a section 189 case, which could not lawfully be heard by a judge alone.
5. The cases were remitted to a full Employment Tribunal for rehearing. The Tribunal was left to decide whether it had been reasonably practicable for the claimants to present their claims in time. The claimants’ explanations disclosed, at least, a highly arguable case on that issue.

1. Employment Appeal Tribunal: appeals from the Employment Tribunal were allowed on the jurisdictional ground and the claims were remitted for rehearing.
2. Employment Tribunal: Employment Judge Druce, sitting alone, dismissed the out-of-time protective-award claims in a judgment dated 26 April 2010, with Reasons dated 14 May 2010.
3. Employment Appeal Tribunal, paper sift: the appeals were initially rejected under rule 3(7), but permission to proceed was granted at a rule 3(10) hearing.