Practice and procedure - Jurisdiction - Unfair dismissal

Kudjodji v Lidl Ltd: Employment Appeal Tribunal (Mr Justice Langstaff): 25 May 2011

The employee brought a claim against the employer for unfair dismissal and racial discrimination. The employer submitted that the claim was out of time.

The employment tribunal held that the race-discrimination claim was out of time but that it had jurisdiction to consider the unfair dismissal claim. That decision was orally expressed and in writing under regulation 28 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861, and an order was made accordingly. Subsequently, the same employment judge conducted a pre-hearing review, pursuant to regulation 34(5) of the 2004 regulations, and upheld her original decision. When the substantive matter came to be heard, a different judge reconsidered the issue of jurisdiction and held that there was no jurisdiction to hear the unfair dismissal claim. The employee appealed.

The issue was whether the second employment judge had had jurisdiction to consider the question of jurisdiction to hear the claim for unfair dismissal, which had already been determined by the first employment judge. The appeal would be allowed.

Where there had been a final determination of a particular issue in the proceedings within regulation 28 of the 2004 regulations, a subsequent tribunal had no right to interfere, no matter how strongly that tribunal or tribunal judge might feel that an error of law had been made, or a potential injustice had been caused.

The right to interfere to remedy a supposed error or injustice did not lie in a subsequent tribunal. It rested with the appellate courts or, if there should be a review, and if the original employment judge was willing to consider a review, on review under regulation 34, but it was not for the second tribunal to consider (see [18] of the judgment).

It was a cardinal principle that, once a final, as opposed to an interlocutory judgment or order, had been drawn up and perfected, it could not be altered except by appeal or, where there was a power to do so, on review.

Settled law demonstrated that a tribunal should think long and hard before coming to a determination in respect of a matter which had been considered by a previous tribunal but about which there had been no judgment or order. It was an aspect of the central principle that there was a need for finality in litigation (see [1], [18], [25] of the judgment).

Applying settled principles to the instant case, the second employment judge had had no jurisdiction to determine the issue of jurisdiction, which had already been determined by a prior employment tribunal, and as to which a decision had been made and recorded in accordance with regulation 28 of the rules (see [6], [26] of the judgment). The claim would be restored for hearing before the tribunal upon the merits of the unfair dismissal claim (see [27] of the judgment). Radakovits v Abbey National plc [2010] IRLR 307 applied.

Harriet Gore (instructed by Rock Solicitors) for the employee; Michael Creamore (instructed by Gregsons Solicitors) for the employer.