Radakovits v Abbey National Plc

The appellant in this case was employed by the respondent as an information technology support services manager on 13 November 2003 until his dismissal, allegedly by reason of redundancy, on 27 October 2005. He was given four weeks’ notice by his employers by a letter dated 30 September 2005. On that same date, or a day or two before, a collective grievance was raised on his behalf and on behalf of other similarly placed employees. This was done by his line manager, Ms Bascetta. The grievance raised a number of issues about the genuineness of the redundancies and the reasons given to the unions in the course of consultation to justify them.

There was an oral hearing, and the result of the grievance was notified to the appellant by letter dated 14 November: that is, after the dismissal had taken effect. He was told that the grievance had been rejected and that the decision was final. However, he was also told that with respect to the actual redundancy decision itself, subsequent actions may have rendered the original decision invalid. In the view of the author of the letter, however, that was not part of the grievance itself and he advised that it might be appropriate to pursue an appeal against the dismissal under the job security procedure.

Mr Radakovits understood that he was unable to appeal under that procedure since he was no longer employed by the company. Ms Bascetta was unhappy with the response to the grievance and wrote both to the chairman and to the chief executive of the company on 18 November, raising a number of concerns. At this time she was still employed by the company. Further, she did appeal in her own right against her own dismissal. She did not specifically appeal with respect to the claimant although she did seek to introduce his situation into her appeal. However, the employers refused to consider it. Her appeal was not completed until after the expiry of the time he had to lodge his unfair dismissal claim.

On 27 January 2006 the claimant brought a claim for unfair dismissal. On its face this was one day outside the three months time limit permitted for such claims. At this stage no reply had been received from either the chairman or chief executive of the company and Ms Buscetta’s appeal had not been determined. By a letter dated 8 March 2006 an employment tribunal judge directed that there should be a pre-hearing review to consider the question of the effective date of termination and whether the tribunal had jurisdiction to consider the claimant’s claim for unfair dismissal. The letter specifically stated that if the tribunal concluded that it did have jurisdiction, it would go on to make a case management order. Leading up to the hearing, there was correspondence between the parties. The employers initially took the view, as they had done in their Response, that the tribunal did not have jurisdiction because the claim was out of time.

However, on 8 May they wrote a letter to the tribunal in which they stated in terms that they did not contest the time issue. They observed that the employee had raised the collective grievance on 30 December 2005 and that, under the relevant disputes procedure regulations, this should lead to an extension of time. They said that they could see no reason why the regulations were not applicable and therefore they asked for the hearing to be vacated. In fact the reference to the 30 December was wrong. The reference seems to have been to the collective grievance raised at the end of September.

The tribunal acceded to that course and made some case management directions. Subsequently there was further correspondence. An application was made, for example, to link various claims, and that was refused. Further case management orders were made by the tribunal, all of which were made on the assumption that the tribunal had jurisdiction to hear the claim. A two-day hearing was fixed initially for 14 and 15 September, but that was re-listed at the claimant’s request. It was subsequently heard on 17 April.

The parties turned up to the hearing fully expecting the tribunal to deal with the merits of the claim. At the start of the hearing, the tribunal of its own motion took the question of jurisdiction as a preliminary issue. The chairman apparently said that he had read the file and he considered that the issue had to be determined. That was his prerogative. On the face of it the application was, as I said, one day out of time.

The tribunal heard evidence about this and they considered two bases on which time might be extended so as to confer jurisdiction. The first, which can be disposed of very shortly, is that time can be extended if it was not reasonably practicable for the employee to put in his claim within the three-month period. That provision was manifestly inapplicable since it was conceded that he could have done so. The second ground is that time is extended by virtue of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 if, at the expiry of the normal time limit, the employee “has reasonable grounds for believing that a dismissal or disciplinary procedure whether statutory or otherwise …” was still being followed in respect of matters that consisted of or included the substance of the claim before the tribunal.

The tribunal treated the appellant’s grievance as though it were a relevant part of the dismissal procedure. However, it concluded that at the time the normal time limit expired, the appellant had no such reasonable grounds for believing that the procedure was still being followed. Mr Radakovits had contended that he could reasonably understand that his case was effectively being dealt with along with Ms Bascetta’s since the outcome of her case, it was suggested, would have influenced the way in which the company had to deal with him. The tribunal rejected that. They also rejected the contention that he could reasonably believe that the procedure was still on foot as a result of a letters sent to the chairman and chief executive respectively, although they did not in terms, it is right to say, address that specific issue.

The tribunal gave one further reason for holding regulation 15 inapplicable. In their view the matters raised in the grievance did not reflect the substance of the case which the appellant subsequently lodged with the tribunal.

The tribunal dealt briefly with the change in the position of the employers. They expressed the view that they had not conceded jurisdiction in May 2006 and did not act in a vexatious way in opposing jurisdiction at the April hearing.

Mr Radakovits appealed. His fundamental complaint was the injustice of the procedure. He had been led to believe that the tribunal had jurisdiction. That is what the chairman had effectively determined in May 2006. The employers had conceded jurisdiction and, as a consequence, the preliminary hearing was vacated. Thereafter all his efforts for some 18 months were directed to preparing for the merits, and the tribunal at the last moment denied him the right to have those tested.

The appeal was considered at the preliminary hearing before Nelson J, presiding in the Employment Appeal Tribunal. He allowed the appeal to go forward on three grounds. The first was whether the tribunal in May 2006 was functus officio. In effect the nature of that ground is that there had effectively been a determination of a preliminary issue by the chairman and it was not open to the tribunal then to reconsider the matter in April 2008. The second and related ground was whether the employer should in some way have been prevented from changing their position and arguing that the tribunal did not have jurisdiction after all. The third ground was that it was said to be arguable at least that the tribunal ought to have given the appellant’s representative the opportunity for an adjournment so that she could properly prepare this issue of jurisdiction.

The Employment Appeal Tribunal dismissed the appeal. They concluded that, since the issue was one of jurisdiction, it was a matter which the tribunal were required to take of their own motion if they were concerned as to whether they could properly deal with this case. Having taken it, they reached a conclusion on the merits which was wholly sustainable. For the reasons the tribunal gave, they were entitled to conclude that the appellant did not reasonably believe that the dismissal procedure was still in play at the time the three-month time limit expired. The EAT also considered that the appellant had had a proper opportunity to meet the case. The EAT did not in terms address the particular point which lay at the heart of the appellant’s grievance, namely that the jurisdiction issue had to all intents and purposes been determined in the May hearing, no doubt because they thought it plain that it had not been.

Accordingly, I gave permission for these matters to be pursued in this appeal. I also gave permission for the appellant to run an argument that he may still have had a grievance outstanding when the time limit expired. That argument cannot, however, succeed because the statutory grievance procedures are not applicable in circumstances where there is a dismissal, as in this case: see regulation 6(5).

The first issue, therefore, is whether the tribunal was entitled to re-open the question of jurisdiction. I have come to the clear conclusion that they were. There is plenty of authority which confirms that time limits in the context of unfair dismissal claims go to jurisdiction, and that jurisdiction cannot be conferred on a tribunal by agreement or waiver: see Rogers v Bodfari Transport [1973] IRLR 172 (NIRC), approved by the Court of Appeal in Dedman v British Building & Engineering Appliances [1973] IRLR 379. Rogers is a particularly powerful case because the point on jurisdiction was not heard until after the tribunal had considered the merits of the case. In Dedman, Lord Denning pointed out that even if an employer actively wishes to have the case heard by a tribunal, the triibunal still cannot hear it if it does not have jurisdiction. The reason is that the language of section 111(2) of the Employment Rights Act (as with its statutory predecessors provides in terms that a tribunal “shall not consider” a claim of unfair dismissal unless it is lodged in time. That is what makes these issues jurisdictional rather than mere limitation issues.

It follows that the fact that the employers initially accepted that the tribunal had jurisdiction is not sufficient to confer jurisdiction on the tribunal. It seems to me clear, contrary to the view of the employment tribunal, that in May 2006 the employers had adopted the clear view that the tribunal had jurisdiction to deal with their claims. Nonetheless, even if they were purporting to abandon any opposition to jurisdiction at that time, that does not bind the tribunal. The question of jurisdiction must be taken by a tribunal if it considers that the issue is properly a live one.

The tribunal in April 2008 would not, however, have been entitled to re-open the question if the employment tribunal in May 2006 had issued a declaration that the claim was in time. The decision would then have been a judgment of the tribunal within the meaning of rule 28 of the Employment Tribunal Rules of Procedure. It would have been, “a final determination of … a particular issue in the proceedings”. As such, it could only have been re-opened on an application for review or on appeal. Another tribunal would not have been entitled to re-open such a determination simply because it disagreed with the conclusion.

However, the tribunal in May did not do that. Whatever view the chairman may have taken of jurisdiction, no judgment was ever entered with respect to this preliminary issue. There would have had to be, under rule 29, a judgment recorded in writing; and, under rule 30, reasons, even if only brief reasons, would have had to have been given for the judgment. Neither of those provisions were satisfied here.

So whilst I have considerable sympathy with the argument of the appellant, it is simply not possible to treat the stance adopted by the tribunal in May 2006 as constituting a judgment or binding determination which would fetter the power of the subsequent tribunal to deal with this issue of jurisdiction. In other words, the vacation of the original hearing cannot be treated as though it involved at one and the same time the making of a judgment by which the court accepted jurisdiction. I reach the conclusion reluctantly, because it may be, and I put it no higher than that, that, had the employment tribunal in May considered the matter, they could have issued a declaration accepting jurisdiction. They could not do so simply because the parties had agreed that the tribunal should exercise jurisdiction, for the reasons I have given. The tribunal would have had to satisfy itself that there was a proper basis for accepting that it did have jurisdiction in the light of the reasons given by the employer. I assume that the chairman, rightly or wrongly, was satisfied at the time that he had jurisdiction, otherwise it seems a curious decision to have chosen to vacate the hearing and given case management directions which assumed that the parties were now on course for a hearing on the merits.

A related question is whether the employers ought in some way to be estopped or debarred from changing their position and arguing the jurisdictional point. If that case were ever to have any merit, I think it would only have been on the basis that the employers themselves were seeking to initiate a reconsideration of the jurisdiction question. Even then, it would have been a difficult argument to sustain if the tribunal felt that the explanation given on its face for accepting jurisdiction in May 2006 was misconceived. But once a tribunal itself had re-opened the question of jurisdiction and was lawfully entitled to do so, then the employers could not possibly be precluded from advancing whatever evidence and argument they considered relevant to the points in issue. I can well understand the sense of injustice which the employee feels about what was plainly an opportunistic change of heart by the employers taking advantage of the position adopted by the tribunal. But as a matter of law, they are in any sense estopped from contending the tribunal did not have jurisdiction after all, notwithstanding the stance they had previously adopted. It follows that in my judgment this appeal cannot succeed.

I would, however, draw the attention of employment tribunals to three matters which arise out of this case. The first is this. It is true that a tribunal cannot exercise jurisdiction by concession and equally, in an appropriate case, the tribunal will be obliged to raise the issue of jurisdiction even though it has not been identified by the employers. An obvious example is indeed this case where, on the face of the application, it is out of time. Tribunals have properly to guard against exercising a jurisdiction when the statutory conditions are not met. But they are not bloodhounds who have to sniff out potential grounds on which jurisdiction can be refused. If the parties agree that a particular claimant is an employee, for example, then I think that there would have to be good reason for the tribunal to doubt that that was the case and to require a preliminary hearing to investigate the matter. If, on the face of it, it appears that the tribunal does have jurisdiction or if there appears to have been a satisfactory explanation for extending what would be the usual time limits, then the tribunal can properly act on that. It does not have to explore fully every case where a jurisdictional issue could potentially arise.

This leads to the second point. If it were the position that the chairman in May 2006 had reached a conclusion that the tribunal did have jurisdiction on the basis of the information then provided to him, he ought to have recorded a decision to that effect, declaring that the tribunal had jurisdiction and very briefly giving his reasons. That would have determined and clarified the matter thereafter. If, on the other hand, he was vacating the matter but choosing to leave it open because, for example, he felt that it was undesirable to seek to resolve it when the parties appeared to be in agreement, then he should have stated that so that they would have known that the issue was still potentially alive and could be taken at a later stage. On the facts here, the only reasonable inference that the appellant could draw, I think, was that the matter had been determined in his favour, and it is very unfortunate in those circumstances that the position was not clarified, one way or the other, at that time.

A final point is this. In order for the appellant to succeed in establishing that time should be extended under regulation 15(2), he had to show that he had reasonable grounds for believing that, putting it shortly, the dismissal procedures were still under consideration. It is very difficult for him to establish that without his giving evidence to the tribunal, to show what his personal state of mind was at the relevant time. In this case he did not give evidence. He was apparently given the opportunity to do so and chose not to, apparently on the basis that Ms Bascetta had given evidence he did not think that he had anything more to add. This was unfortunate. I stress that there is no legal obligation on the tribunal to assist litigants in person or those who appear before them without legal representation, and tribunals will quite properly want to guard against appearing to be partial to one side. But a tribunal can quite properly, and without descending into the arena, explain to a party the issue they have to determine and explain why, for example, that party may be prejudiced if he fails to give evidence. It is possible that was done in this case and we are not criticising the tribunal if they did so. Of course the tribunal must say nothing at all about the evidence he should give in order to sustain his case or anything of that kind (as opposed to the questions they have to consider), but it is a proper function for a tribunal dealing with unrepresented litigants to give them appropriate assistance so that they can understand the implications of a decision they need to take.

However, for the reasons I have given, this appeal fails.

I agree.

I also agree. I agree, in particular, with the general points which my Lord has drawn to the attention of employment tribunals in cases of this kind. I agree with my Lord that there is no error of law in the decision of the employment tribunal that was registered on 14 May 2007.

For all the reasons given by my Lord, this appeal should be dismissed.