Kudjodji v LIDL Ltd (Practice and Procedure : Preliminary issues)

An Employment Tribunal cannot confer jurisdiction by agreement, waiver or estoppel. Where a final determination of a particular issue has been made under rule 28 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, another Tribunal of equivalent jurisdiction cannot reconsider it, even if it believes that the earlier decision was erroneous or caused injustice. The decision may be altered only on appeal or, where available, on review. This principle reflects the need for finality in litigation and applies equally to jurisdictional time-limit questions.

An Employment Tribunal had previously determined under rule 28 that an unfair dismissal claim was in time and that it had jurisdiction. The decision was reviewed but left unchanged and was not appealed. When the substantive hearing later came before another Employment Judge, the parties agreed that the time issue should be reconsidered. The Judge heard evidence, concluded that the claim was out of time and dismissed it.

The appeal concerned whether the second Judge had jurisdiction to revisit the question after the earlier final determination, and whether the parties’ agreement could validate that reconsideration.

1. Appeal allowed. The second Employment Judge had no jurisdiction to reconsider whether the unfair dismissal claim was in time. That issue had already been finally determined by an order made under rule 28.
2. The general civil litigation principle is that a judge may reconsider a decision before the order is drawn up or perfected, subject to the stringent limits recognised in Stewart v Engel and discussed in Robinson v Bird. Once a final order has been drawn up and perfected, it cannot be altered by the same or another court except on appeal or under an applicable review jurisdiction.
3. The same principle applies in the employment jurisdiction. Radakovits v Abbey National Plc showed that a Tribunal may reconsider jurisdiction where the issue has merely been conceded and no judgment or order has determined it. By contrast, where a Tribunal has issued a final determination under rule 28, a subsequent Tribunal cannot reopen it simply because it considers that an error of law or injustice occurred.
4. Jurisdiction cannot be conferred by the parties’ agreement, waiver or estoppel. The parties’ agreement that the second Judge should hear the issue therefore could not validate the decision.
5. The distinction relied upon from Secretary of State for Health and Others v Rance and Others, concerning the raising of new points of law on appeal, did not apply to a later Tribunal revisiting an issue already determined by an equivalent Tribunal.
6. The claim was restored for hearing on the merits of the unfair dismissal complaint. The Employment Appeal Tribunal declined to invite the original Judge to undertake a further review.

1. Employment Appeal Tribunal: allowed the appeal from Employment Judge Roper’s decision of 19 November 2010, which had dismissed the unfair dismissal claim as out of time.
2. Employment Tribunal: Employment Judge Warren had earlier determined under rule 28 that the claim was in time and that the Tribunal had jurisdiction. That decision was reviewed and left unchanged; it was not appealed.