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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Carter v. Ahsan [2004] UKEAT 0907_03_2402 (24 February 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0907_03_2402.html Cite as: [2004] UKEAT 907_3_2402, [2004] ICR 938, [2004] UKEAT 0907_03_2402

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THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This appeal from the unanimous decision of the Employment Tribunal at Birmingham concerns three Originating Applications by the Applicant Mr Ahsan against the Respondent which, after various changes of technical parties because of turnover in General Secretaries, can simply be understood as being the Labour Party.

The First Application

2. The first complaint was commenced by the Applicant's application on 26 February 1998, and was summarised by the Birmingham Employment Tribunal as being that "by declining, between 19 and 21 December 1997, to select the applicant as a prospective candidate for the then forthcoming elections to the Birmingham City Council, the respondent discriminated against the applicant on racial grounds". A Notice of Appearance was served by the Respondent on 24 March 1998, which consisted simply of a challenge to the jurisdiction, and in its grounds of resistance, and by accompanying letter of the same date, the Respondent sought a preliminary hearing to determine whether the Tribunal had jurisdiction. The challenge to the jurisdiction was that the claim was said to fall outside the provisions of s12 of the Race Relations Act 1976, upon which alone the Applicant based his case. This section reads as follows:

"(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade, to discriminate against a person –

(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or

(b) by refusing, or deliberately omitting to grant, his application for it;

(c) by withdrawing it from him or varying the terms on which he holds it.

(2) In this section –

(a) "authorisation or qualification" includes recognition, registration, enrolment, approval and certification;

(b) "confer" includes renew or extend.

(3) Subsection (1) does not apply to discrimination which is rendered unlawful by sections 17 or 18"

[which relate to matters not justiciable in an employment tribunal]."

3. The hearing of the preliminary issue took place on 6 and 8 July 1998, and the unanimous decision of the Employment Tribunal at Birmingham (chaired by Mr Williams, who was subsequently to chair the panel against whose decision we are hearing this appeal, but with different lay members) was promulgated on 25 August 1998. This decision was that:

"1. Holding the office of Councillor on Birmingham City Council amounts to engagement in a profession within the meaning of section 12 of the Race Relations Act 1976;

2. The Labour Party is a body which can confer an authorisation or qualification which is needed for, or facilitates, such engagements;

3. Accordingly the [Employment] Tribunal has jurisdiction to entertain the applicant's claim.

And it is further ordered that this application be relisted to be heard on its merits."

4. A Notice of Appeal was lodged by the Respondent on 24 September 1998. It was in due course heard by the Employment Appeal Tribunal (Lindsay P and Messrs Ezekiel and Sanderson) on 5 May 1999, as will appear.

The Second Application

5. The second application, which related to a separate and subsequent set of facts, was issued by the Applicant against the Respondent on 22 September 1998. This was summarised by the Employment Tribunal as being a claim that "by declining, on or about 8 July 1998, to include the applicant's name on a list of prospective candidates for local government elections, the respondent victimised the applicant." The Notice of Appearance served on 8 December 1998 again challenged the jurisdiction on the same basis, although on this occasion there was also an alternative factual defence, without prejudice to the jurisdiction case. By agreement between the parties, the second application was stayed, by an order contained in a letter sent on behalf of the Regional Secretary at the Birmingham Employment Tribunal dated 23 December 1998 "pending conclusion of the appeal in respect of [the first application]". It was thus effectively agreed that it would abide its outcome.

Lindsay P's Decision in Sawyer

6. Judgment on the appeal, which, as we have said, was heard on 5 May 1999, was given on 14 July 1999. The judgment was delivered by Lindsay P. This is reported as Sawyer v Ahsan (which we shall refer to as Sawyer) at [2000] ICR 1; the headnote, after reciting that the Employment Tribunal had held that it had jurisdiction to hear the complaint and that the Labour Party had appealed, recites as follows:

"Held, dismissing the appeal:

(1) that the Labour Party, an unincorporated association whose members were bound to one another in contract, came within the intendment of the word 'body' in section 12(1) … ; that, given [that] "profession", as defined in section 78(1) of the Act included vocation or occupation, being a councillor was capable of involving "engagement in a … profession" for the purposes of section 12(1); that, since selection as a candidate involved "recognition" in the campaign, and on the voting papers, of his being the Labour Party candidate, the Labour Party was conferring on a candidate an "authorisation or qualification", as defined by section 12(2)(a); and that such recognition or approval was "needed" for engagement in the 'particular' occupation of being a Labour councillor.

(2) That, although Part II of the … Act …, which included section 12, was headed 'Discrimination in the employment field' and a councillor was not employed under a contract of employment but was an office holder, it did not refer only to discrimination by employers, nor to 'employment' in the limited sense defined in section 78(1), so that section 12 was wide enough to confer jurisdiction on the tribunal to hear the applicant's claim."

7. Lindsay P concluded his judgment as follows:

"The Employment Tribunal has, in our judgment, jurisdiction to hear [the applicant's] complaint. We would ordinarily go on to direct the matter to return to the Employment Tribunal to be heard on the merits, but at the close of the hearing both sides indicated, first, that whichever lost, it or he would wish to appeal and, secondly, that the winner would not resist the grant of permission to appeal. Important principles are plainly involved and we welcome the matter going further; permission to appeal is granted to the Labour Party. If no Notice of Appeal is lodged within the prescribed or any duly extended time, then the matter is to be relisted at the Employment Tribunal to be heard on its merits."

8. The last sentence of the judgment was duly incorporated into the Order in those terms.
9. The Respondent did not take up the permission to appeal, then or at any time thereafter. Instead, Further Particulars of its grounds of resistance were served, pursuant to an Order to that effect dated 21 June 2000, setting out the nature of the Respondent's defence on the merits to the first application, which had not previously been pleaded, prefaced by the following paragraph:

"In the light of the Employment Appeal decision in this matter on the preliminary issue of jurisdiction … it is admitted and averred for the purpose of these proceedings that the Respondent is a body which can confer an authorisation or qualification within the meaning of s12 of the Race Relations Act 1976."

The Third Application

10. Meanwhile, the Claimant issued the third of the three applications which were the subject matter of the hearing below on 26 May 2000, again based on separate and subsequent facts, the two complaints in which it summarised as being that:

"By declining, on 16 or 17 March 2000, to shortlist or select the applicant as its candidate for the Sparkhill ward, or any other ward, the respondent both discriminated against the applicant on racial grounds and victimised him.

By refusing, on or about 7 April 2000 to validate the applicant's nomination to the respondent's National Executive Committee, the respondent [both] discriminated against the applicant on racial grounds [and] victimised him."

11. In this third application, the Respondent did not plead a jurisdiction point in respect of the first of those two claims, in its Notice of Appearance dated 13 July 2000, but did take a jurisdiction point (on which, as will be seen, it was ultimately successful below) in respect of the second of the two claims, on the basis that the somewhat differently characterised claim fell outside s12, because the section does not "apply to members of a committee of a political party".

The Tribunal Below

12. By the Tribunal order of 21 June 2000, to which we have referred, the three applications were to be tried together, and they eventually came on for hearing at Birmingham, in front, as we have indicated, of Mr Williams and an otherwise differently constituted Tribunal, commencing on 18 June 2001. What transpired is described by the Tribunal in paragraph 2 of its Decision, handed down, in circumstances which are apparent from the passage we shall cite, on 24 September 2003, 2¼ years later:

"2. …The substantive hearing of these three applications took place before us over fifteen days between 18 June and 14 September 2001. Both parties were represented by leading counsel. We heard the evidence of seventeen witnesses, considered in excess of 1,500 pages, and received lengthy submissions both orally and in writing. The decision was reserved and was considered by the Chairman and members on 12, 13 and 14 November 2001. The substantive decisions were made by 14 November 2001. Thereafter a draft decision was prepared by the Chairman and submitted to the members for their observations. The process was unavoidably extended somewhat by the absence of one member abroad. By their letters, coincidentally both of 18 February 2002, the members expressed their satisfaction with the decision as drafted. On 11 February 2002 the respondent's solicitors wrote to the tribunal drawing attention to the decision of the Court of Appeal in Triesman v Ali [2002] EWCA Civ 93 dated 7 February 2002 and submitting that this tribunal had no jurisdiction to hear the applicant's complaints. Correspondence ensued between the parties and the tribunal office concerning how this matter should be further progressed by this tribunal. Initially the respondent wished to deal with the matter by way of written submissions but the applicant wished to make oral submissions to the tribunal. The tribunal determined that it would not take any further steps before giving both parties the opportunity to present oral submissions. A further delay ensued because an application was made for leave to appeal the case of Triesman v Ali to the House of Lords. On 18 November 2002 leave to appeal [to the House of Lords] was refused. The matter came before us on 10 July 2003, when leading counsel for both parties presented their further submissions as to how the tribunal should proceed. The decision was reserved to the Chairman and members on 7 August 2003, on which date the tribunal made the further determinations set out below."

13. This reference to Triesman v Ali is to the case subsequently reported as Ali v McDonagh [2002] ICR 1026. We shall refer to it as Ali. That case too involved the Labour Party (Sawyer, under whose name this case was reported in relation to the judgment of Lindsay P, McDonagh, Triesman and now Carter, being the successive General Secretaries). The solicitors instructed by the Labour Party before the EAT in Sawyer were the same solicitors who were instructed in Ali, junior Counsel was the same in each case, but there was a different leading Counsel. In Ali, in respect of a claim brought in apparently similar circumstances against the Labour Party, the applications were successful at the Reading Employment Tribunal in September 2000: and an appeal by the Labour Party was dismissed by the Employment Appeal Tribunal (Lindsay P and one of the two lay Members being the same as in the appeal in Sawyer two years before) on 10 April 2001. Again Lindsay P gave permission to appeal to the Court of Appeal, on 23 April 2001, and this time the Labour Party took up that permission, and its appeal to the Court of Appeal succeeded, after a hearing on 4 December 2001, as appears from the judgment of the Court (Peter Gibson, Mantell and Arden LJJ) handed down by Peter Gibson LJ. In material part the headnote of Ali, after reciting that the Employment Tribunal in that case had, on a preliminary issue, ruled that it had jurisdiction to deal with the complaints under s12, and that an appeal to the Employment Appeal Tribunal by the Labour Party had been dismissed, recited as follows:

"Held, allowing the appeal (1) that, construing section 12 … as a whole, the Labour Party, in selecting a candidate for local government elections or allowing a person to be nominated to the pool from which prospective candidates were to be selected, was not a body which "can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession" and it was not the type of body to which the section was intended to apply, since the party's activities were for its own political purposes; and that, therefore, it would be wholly artificial to treat the section as applying to the circumstances of the present case … Sawyer v Ahsan [2000] ICR 1 EAT overruled."

14. A new firm of solicitors had meanwhile been instructed by the Respondent to handle the fifteen-day hearing in the Employment Tribunal, and Gavin Millar QC was instructed without a junior. He became aware of Ali when he was retained by the Respondent to act in the Employment Tribunal in this case in April 2001, and of course at that stage the Employment Appeal Tribunal had delivered the same conclusion in both cases. He and his solicitors were of course aware that the case of Ali was being taken to the Court of Appeal (but by the original firm of solicitors, by whom he himself was not instructed), and that it was heard in December 2001. As the Tribunal described, in the passage we have quoted in paragraph 12 above, as soon as the result in the Court of Appeal in Ali was known, the Respondent's solicitors in this case wrote to the Employment Tribunal to draw its attention to Ali and submit that the Employment Tribunal, which, as explained, had not yet delivered its Decision, was bound by the Court of Appeal's decision, which had overruled the Employment Appeal Tribunal's decision in Sawyer.
15. It was perfectly understandable that the Employment Tribunal, having actually finalised its Decision in draft, should wish and think it only fair to promulgate it; but of course, had it been so persuaded, it could nevertheless have promulgated what its Decision would otherwise have been, which, as will appear, was a decision in favour of the Applicant in three out of the four claims, but adding the conclusion, had it so concluded, that it was now bound to decide to the contrary as a result of the Court of Appeal's decision in Ali. However, after hearing substantial argument on both sides, which the Tribunal summarises in paragraphs 3 to 5 of its Decision, and reserving judgment, it did not so conclude. Paragraphs 6 to 8 of its Decision read as follows:

"6. … Our approach was to identify and take into account all those matters we considered were properly relevant to our considerations. Those matters we found to be as follows:

(i) This tribunal is established by statute and its substantive jurisdictions are conferred on it by statute or statutory instrument. It would be an overstatement, however, to say that this tribunal has no power other than one expressly conferred by statute. If that were so, then the doctrine of res judicata and issue estoppel could have no place in Employment Tribunal proceedings because they are not expressly referred to by any statute conferring jurisdiction on the tribunal. Yet we understand it to be clear law that the proceedings and decisions of proceedings and decisions of Employment Tribunals are covered by, and subject to, those doctrines.

(ii) Where the construction of a statute granting jurisdiction has been considered by a higher court then such construction is binding upon this tribunal.

(iii) By rule 15 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, subject to the provisions of those rules, this tribunal may regulate its own procedure. In particular, in the exercise of that power, this tribunal may, on application or of its own motion, stay the hearing of an application in a proper case to await clarification of the law by a higher court.

(iv) By regulation 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 it is provided that the overriding objective of the rules in Schedule 1 is to enable tribunals to deal with cases justly. Dealing with a case justly includes, so far as practicable –

(a) ensuring hat the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate to the complexity of the issues; and

(d) ensuring that it is dealt with expeditiously and fairly.

(v) At the time when the point now before us was first raised, this tribunal had for most practical purposes completed its work. The hearing was complete, the decision was made and the written decision, in draft form, had been agreed by the Chairman and lay members. It is because there was delay in finalising the decision in this case and because of the date on which the Court of Appeal happened to give judgment in Triesman v Ali that the matter before us arose. If we had delivered our judgment before 7 February 2002 no argument as to jurisdiction could have been raised.

(vi) At all points up to the stage described in the foregoing paragraph, the tribunal had proceeded upon the agreed basis that the decision of the Employment Appeal Tribunal in Sawyer v Ahsan confirmed that the tribunal had jurisdiction to deal with these applications.

(vii) At no time did the respondent suggest to us that there was any question over our jurisdiction, notwithstanding the fact that the respondent of course knew that it was in the process of appealing the case of Triesman v Ali to the Court of Appeal.

(viii) No application was made to us to stay or otherwise defer the hearing of these applications.

(ix)It would in our experience be an extremely unusual circumstance for a tribunal to have heard a case on its merits, to have reached a decision and then not to announce that decision to the parties who would thus ever after remain in ignorance of what the tribunal had concluded in relation to their evidence and submissions. It is one of the foremost functions of this tribunal to give a reasoned decision to the parties enabling them to understand what conclusions the tribunal has reached and why.

7. It is evident from what is set out above that there are diametrically opposed competing claims in this case. Not without considerable difficulty, we have come to the conclusion that we ought to proceed to promulgate the decision which we reached on the merits of these applications. Our reasons for so deciding are these. We are enjoined so to do by the order of the Employment Appeal Tribunal in Sawyer v Ahsan. That order was never appealed and, therefore, stands and binds us. At the time we undertook this hearing no question was raised as to our jurisdiction. In any event, the date on which the Court of Appeal delivered its judgment was unforeseeable to us and arbitrary. It is unsatisfactory that the parties in this present litigation should either be permitted to receive our decision, or on the other hand prevented from receiving it, dependent solely on the conjunction of two dates, namely when our decision was ready for promulgation and when the Court of Appeal gave judgment in Triesman v Ali. It was first and foremost in the power of the respondent to alert us to the question hanging over our jurisdiction and either to apply for a stay of the hearing of these applications or such other course as it thought appropriate. We consider that the fact that different legal teams were involved on behalf of the respondent in Sawyer v Ahsan, on the one hand, and Triesman v Ali, on the other, is wholly irrelevant to our considerations. The respondent is one and the same body through whichever legal representation it chooses to act. The overriding objective of the Employment Tribunals Rules of Procedure enjoins us to deal with cases justly. We consider that dealing with a case justly involves telling the parties the conclusions we have reached and why. The parties, and in particular this applicant, would entertain an understandable feeling of injustice if we were now not to do that. Dealing with a case justly also includes saving expense; it is conceivable that there may be a challenge to our decision; one of the possible outcomes of such a challenge could be the remission of the case to this tribunal, or a different tribunal, so that the facts may be found. After so much time has elapsed, and so much money been expended on this litigation, we consider that that is an outcome which we ought to obviate if it is within our power to do so.

8. For the above reasons, we consider that we have jurisdiction, and are obliged, to proceed to promulgate our decision in full. To do otherwise would not be to deal with the case justly."

16. As we have indicated, it then proceeded to deal with the four claims, one claim in each of the first two applications and the two claims in the third, and recorded, at considerable length, its reasons why it found on three claims in favour of the Applicant, and dismissed the fourth, being the second claim in the third application. There is no cross-appeal in respect of its dismissal of that claim.

The Appeal

17. The appeal by the Respondent, in respect of the Applicant's success on the three claims, falls into two parts. It first contends that, in the light of the Court of Appeal's decision in Ali, the Tribunal was bound to conclude that it had no jurisdiction to determine the three claims upon which it found in favour of the Applicant. This has been the subject of the hearing before us. Secondly and without prejudice to that contention, it has appealed the substantive findings of the Tribunal on the merits. By the order of Judge Richardson in Chambers on paper on 17 November 2003, it was ordered that this appeal would be heard in two parts, the first part dealing only with the Employment Tribunal's decision on jurisdiction, with directions for the second part of the appeal relating to the merits to be given thereafter. Consequently we have not at all considered the reasons which the Tribunal gave on the merits.
18. Before us, Mr Millar QC who, as we have explained, was not previously instructed in this case, nor was instructed in Ali, represented the Respondent, as he represented it below before the Employment Tribunal. Mr Allen QC, who had represented the Applicant both at the original preliminary hearing before the Employment Tribunal in July 1998 and in the successful resistance of the appeal to the Employment Appeal Tribunal, again represented the Applicant both below and before us, leading Ms Reindorf, although on this occasion pro bono. Unlike Mr Millar QC, as we have also explained, he was also Counsel in the Court of Appeal in Ali.
19. Mr Millar QC's submissions were straightforward, and persuasively set out in writing, so that we did not need to ask him to develop them orally:

19.1 Although the point, that Ali meant that the Employment Tribunal, which had not concluded its hearing of this case by promulgating its Decision, had no jurisdiction, and was bound to dismiss the applications, was taken late, it was not available to be taken until after 7 February 2002, which was, as it happens, just before the Tribunal was functus officio by delivery of its Decision, so it was in time. However even if it had only arisen after the Decision was promulgated, and if it was not available to be taken by way of an application for review to the Employment Tribunal, but could only have been taken for the first time on an appeal to the Employment Appeal Tribunal, it was a point of jurisdiction; and there is no prohibition from taking a jurisdiction point in the Employment Appeal Tribunal which has not been taken below. The well-known principle in Kumchyk v Derby City Council [1978] ICR 1116, whereby it is not ordinarily permitted to run an argument at the Employment Appeal Tribunal which has not been run below, does not apply in such a case. Mr Millar QC relied on the following:

a. The decision of the Employment Appeal Tribunal by Talbot J in House v Emerson Electric Industrial Control [1980] ICR 795, to which he referred, by reference to its citation in the subsequent decision of the Employment Appeal Tribunal per Knox J in Barber v Thames Television plc [1991] ICR 253. In House, Talbot J cited at length the seminal passage of the judgment of Arnold J in Kumchyk, and then continued at 800B as follows:

"We would wholly endorse what was said by Arnold J and what would seem to be setting out the settled and accepted practice in this appeal tribunal, and we would not seek to depart from what he said – except, in our view, that where the matter raises the question of jurisdiction (that is to say, whether the [employment] tribunal claimed jurisdiction, or refused to accept jurisdiction) it is open, even if that matter was not raised before the [employment] tribunal, to argue it before the appeal tribunal. …If an [employment] tribunal has accepted jurisdiction when it had no jurisdiction to do so, and if that emerges at the hearing of an appeal, then it is for the appeal tribunal to rule upon it accordingly. Though, therefore, this is a new point presented to us, and though this is in a way a departure from what is a settled practice, we think that it involves a matter of jurisdiction and we ought to consider it."

b. In Barber, Knox J cites Talbot J and then at 268 adds:

"It does not however follow from this that all jurisdictional points must be allowed at any stage, even if they involve a further hearing to establish further facts. In our view in each case the appeal tribunal has to decide on balance whether justice requires that the new point should be allowed to be taken … Where what is relied upon is a chance of establishing a lack of jurisdiction by calling fresh evidence which was always available the case is far less straight forward."

That is of course not the case here, where the point has now been put beyond doubt by the Court of Appeal and no further evidence will be required.

c. Thus the case falls to be distinguished from the most recent decision on this topic, Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 CA, in which consideration of the fresh point involved a resiling from agreed facts. Laws LJ at paragraph 18 said as follows:

"If the new issue goes to the jurisdiction of the Employment Appeal Tribunal below, that may be an exceptional circumstance, but only, in my judgment, if the issue raised is a discrete one of pure or hard edged law requiring no or no further factual enquiry. There is a public interest, beyond the interest of individual parties, that statutory tribunals exercise the whole of but exceed none of the jurisdiction which Parliament has given them upon such facts as are proved or admitted before them."

19.2 Estoppel, upon which Mr Allen QC placed reliance before the Employment Tribunal, did not arise:

a. There was no estoppel by virtue of the Respondent's simply not taking up its permission to appeal; and it could not be estopped from relying upon a binding decision in the Court of Appeal (notwithstanding that it was a decision which the Respondent had itself, as a party to that appeal, achieved). The Respondent, like all other litigants, was entitled to say that the law was now as decided by the Court of Appeal, whatever it had been thought to be, or had been decided by lower courts to be, previously.

b. Even if there might otherwise have been an estoppel, there was no room for estoppel in this case. As adumbrated in the passage cited from Laws LJ in Barber, the Employment Tribunal's jurisdiction is statutory. He referred to the words of Mummery P in Biggs v Somerset County Council [1995] ICR 811 at 830C:

"The industrial tribunal has no inherent jurisdiction. Its statutory jurisdiction is confined to complaints that may be made to it under specific statutes."

and to Secretary of State for Scotland and Another v Mann and Another [2001] ICR 1005 per Lord Johnston at paragraph 33:

"The jurisdiction of the employment tribunal system is entirely dependent upon statute where positive jurisdictions are conferred whether by primary or subordinate legislation."

A tribunal without jurisdiction cannot be clothed with jurisdiction by consent or estoppel. This principle is unchallengeable and was well illustrated in the authorities upon which Mr Millar QC relied. In Essex Incorporated Congregational Church Union v Essex CC [1963] AC 808, there is the seminal passage of Lord Reid at 820-821:

"It is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction":

so also per Lord Wilberforce in relation to an employment tribunal in Secretary of State for Employment v Globe Elastic Thread Co Ltd [1980] AC 506 at 519A:

"Even if anything in the nature of an estoppel arose, that could not confer upon the tribunal a jurisdiction beyond that given by the Act."

We were referred also to similar passages in Department of Health and Social Security v Coy [1984] ICR 309 (EAT) per Browne-Wilkinson P at 315G-316B, Ahmed v Government of the Kingdom of Saudi Arabia [1996] ICR 25 CA at 33A per Peter Gibson LJ ("It is clearly established that an [employment] tribunal may not enlarge its jurisdiction on the basis of an estoppel") and, most recently, Aparau v Iceland Frozen Foods plc [2000] ICR 341 CA per Moore-Bick J at 351, all specifically in relation to employment tribunals.

19.3 If any further arguments were necessary, even if estoppel could run this would be at best issue estoppel, and Mr Millar QC referred us to Arnold v NatWest Bank plc [1991] 2 AC 93, particularly per Lord Keith at 109-111, whereby a change in the law can amount to special circumstances permitting the reopening of an issue: and, if it were suggested to be cause of action estoppel, the judgment into which that cause of action had been merged, namely that in Sawyer, had been overruled.

20. It was in those circumstances that Mr Millar QC simply submitted that the Employment Tribunal had no jurisdiction to decide the facts upon the basis it did in its promulgated Decision. The facts in question now being shown clearly to fall outside the ambit of s12, the Tribunal had no jurisdiction to resolve them further in favour of the Applicant or at all. As for the way in which this occurred, and the fifteen days of hearing before the Tribunal, he had to accept that there might be grounds for an order for costs against the Respondent. But he submitted it could not be an abuse of process, such as is contended by Mr Allen QC, for the Respondent, like any other litigant, to rely upon the absence of jurisdiction, which indeed it was obliged to draw to the attention of the Tribunal: and he referred to the passage in the judgment of Laws LJ in Glennie, to which we have referred in paragraph 19.1 above, relating to the "public interest beyond the interest of individual parties that statutory tribunals exercise the whole of but exceed none of the jurisdiction that Parliament has given them". In any event, he submitted that abuse of process, even if established, cannot itself clothe the Employment Tribunal with jurisdiction, any more than can consent or estoppel. Mr Millar QC made no distinction between the three different applications. All must fail.
21. Mr Allen QC had a mountain to climb in those circumstances and he did not shrink from the task. He did not spend any time in contesting Mr Millar QC's submissions on estoppel, despite their having been in some contention below. His persuasive and eloquent submissions were devoted to other ends.
22. He certainly submitted that there had been an abuse of process by the Respondent:

(i) No explanation has been given as to why the Respondent did not take up the permission to appeal in this case, and yet did so in Ali.

(ii) In the absence of such appeal, and the almost inevitable stay that would have accompanied it, a lengthy fifteen-day hearing had followed on the merits. There had not even been an attempt by the Respondent – though it would have been resisted – to seek a stay of the hearing of this application, prior to its commencement in June 2001, after the EAT decision in Ali, and pending the hearing of the Court of Appeal in Ali: nor any attempt by the Respondent to take up the permission to appeal in this case out of time and bring it on in the Court of Appeal together with Ali.

23. But his primary case was not dependent on these contentions. There was, he said (i) a collateral attack on a judgment, which could not be tolerated (see Hunter v Chief Constable of West Midlands Police [1982] AC 529 HL) (ii) a perversion of the doctrine of precedent and an undermining of the ordinary principles of court process. The simple fact was that there was not simply a judgment of the Employment Appeal Tribunal in this case, which had been overruled, but an order of the Employment Appeal Tribunal which has not been set aside. That order, of the Employment Appeal Tribunal, sealed on 14 July 1999, that "the matter is to be relisted at the Employment Tribunal to be heard on its merits" has not been set aside, and must be complied with. The judgment will not be followed in future, and no similar order will be made by any other court, but whether or not there could have been an application to review the order made to the Employment Appeal Tribunal - the statutory time scale for the limited review provisions under Rule 33 of the Employment Appeal Tribunal Rules had long expired and, according to our recent decision in Asda Stores Ltd v Thompson & Others [EAT/0063/03] unreported, followed in Vakante v Addey and Stanhope School [EAT/0565/03: to be reported in [2004] ICR], there is no wider power in the Appeal Tribunal to reconsider its own orders - no such application has ever been made, nor has any appeal been pursued. As a matter of principle, litigants who have lost cases where there is a subsequent law change cannot simply disregard the orders made against them, and can only seek to avoid the consequence of such orders if they are permitted, on application to the court, to review or appeal that order out of time, and, difficult if not impossible though that may be, it has not been sought to be done by the Respondent in this case. No distinction could be drawn simply because the litigation as a whole between these parties is still continuing, because the particular issue is as foreclosed by the order of 14 July 1999 as it would be if the proceedings were at an end, unless that order could be reviewed or appealed. If orders which remain in force can simply be ignored, then that is a recipe for chaos.
24. Mr Allen QC relied upon the following authorities:

(i) In Re Waring: Westminster Bank v Burton-Butler [1948] Ch 221. The facts of that case were that a construction summons had led to a conclusion eventually by the Court of Appeal ([1942] Ch 426) as to the tax treatment of an annuity fund, but only one of the two annuitants was a party to that application, the other being abroad. After the decision of the House of Lords in Berkeley v Berkeley [1946] AC 555, it became clear that the decision of the Court of Appeal in the Waring case was wrong, and the trustees now applied for directions as to the tax treatment, in respect of both the original and now the other annuitant. It was held that, in the case of the annuitant who was a party to the previous proceedings, he was bound by the decision of the Court of Appeal as to the reduction of his tax-free annuity, while the second annuitant, who had not been a party to the previous decision, was not bound by the order of the Court of Appeal and was entitled to claim retrospectively the full amount of her annuity. Jenkins J (at 227) held, in relation to the decision of the Court of Appeal, that "it has been overruled, or in other words has been held by a higher tribunal to be wrong in law and not to be followed in other cases, but it is nevertheless a subsisting order which is binding on the parties to the proceedings in which it was made."

(ii) In Property and Reversionary Investments Corporation v Templar and Another [1977] 1 WLR 1223, landlords had failed in the High Court to activate a rent review clause in a lease due to failure to comply with the time limits, and after the decision in the House of Lords in United Scientific Holdings Ltd v Burnley BC [1978] AC 904, which altered the law in relation to such strict compliance, the landlords applied for leave to appeal out of time. The Court of Appeal permitted this, by virtue of the special circumstances that (per Roskill LJ at 1224) "the parties are in a continuing contractual relationship and … it is wrong that that relationship should still continue … to be governed until 1986 by a decision … which … is to be treated as erroneous." Upon the basis that both sides' costs would be paid by the landlords, and that the landlords undertook not to claim any rent retrospectively, their application was permitted. There was however no question of their simply having treated the order as wrong and of no effect if unappealed.

(iii) Arnold, to which we have referred, was another rent review case in which the question of construction was decided against the tenants by Walton J, which, by virtue of its having been an appeal in an arbitration, could not be further appealed at the time, since he refused to grant a certificate that the case involved a question of law of general public importance. Two subsequent decisions of the Court of Appeal indicated that Walton J's decision on the construction point was wrong, and, before the next review became due, a fresh action was brought. As indeed Mr Millar QC has pointed out, the issue estoppel could be reopened by virtue of the change in the law, or in that case the subsequent correction of the earlier mistaken judgment; but the significant point from Mr Allen QC's point of view is that the original order remained, absent an application for leave to appeal it out of time, such as occurred in Property and Reversionary Investment Corporation, but not of course in Arnold.

25. Mr Millar QC submitted the contrary, namely that an order can change in its effect, in the event of a change of the law, and that an order which at the time when it was given was intra vires can become ultra vires. He makes this submission by reference to his case in response, that the principles upon which Mr Allen QC relies apply only in the High Court, and not in the Employment Tribunals, with their limited statutory jurisdiction, as described in paragraph 19.2 above.
26. Mr Allen QC submits that there is no such distinction. The statutory structure, by virtue of sections 1 to 3, 21, 35 and 37 of the Employment Tribunals Act 1996, is that, subject to appeal to the Court of Appeal, the Employment Appeal Tribunal, to whom appeals from them lie, controls the employment tribunals: and we agree with Mr Allen QC that the time at which the jurisdiction falls to be tested is the time at which the order, in this case the order of the Appeal Tribunal directing the Employment Tribunal what to do, was made. An order made, which at the time when made is within the jurisdiction of the Employment Appeal Tribunal or the Employment Tribunal, must be complied with until set aside, in the same way as an order of the High Court. For example in cases in which, prior to the decision in Dunnachie v Kingston upon Hull City Council (No 1) in the Employment Appeal Tribunal [2003] IRLR 384 (itself subsequently overruled by the Court of Appeal by a majority, subject to further appeal to the House of Lords, for which the Court of Appeal gave permission), employment tribunals made orders for compensation for non-economic loss, which the Employment Appeal Tribunal thus concluded in Dunnachie that they had no jurisdiction to do, the orders by those other employment tribunals would not automatically have become void and of no effect. They would require themselves to be appealed, as has subsequently been occurring. The same a fortiori would apply to ancillary orders for costs if they were made. The same chaos, the same uncertainty, the same lack of order, would apply in relation to orders of statutory tribunals as to orders of the courts, if it could become uncertain as to whether they were binding, the moment there is some decision in another case (if known about) overruling the judgment, or changing the law, upon which those orders were based.
27. Mr Allen QC thought it right to draw our attention to the distinction between the first application and the second and third applications. We are afraid that we agree with him that there is such a distinction. In relation to the first application, the order of 14 July 1999 was made by the Employment Appeal Tribunal to hear the case on its merits, with which the Employment Tribunal has complied. Such order has not been reviewed or appealed, and we conclude, in accordance with Mr Allen QC's persuasive submissions, that the Employment Tribunal thereby had jurisdiction to hear and determine the first application. No subsidiary argument of abuse of the process is necessary, and we reach no conclusion in that regard. However the position is, as Mr Allen QC frankly admitted, different in relation to the second and third applications, in which no such order was made:

(i) So far as the second application is concerned, the highest that can be said is that it was conceded, agreed or assumed, by virtue of the order by the Employment Tribunal of 23 December 1998, to which we referred in paragraph 5 above, that it would abide the event of the appeal in the first application, and that, if that appeal were unsuccessful, it would be dealt with in the same way as, and in accordance with, such order as was made: and of course that is precisely what then occurred, by virtue of the order of 21 June 2000, which provided for the three applications to be heard together, or consolidated, by the Employment Tribunal. The Employment Appeal Tribunal made no order in, or in respect of, the second application.

(ii) The argument in respect of the third application, being subsequent to the Employment Appeal Tribunal order, can only depend upon the consolidation order, and the parties' conduct accordingly.

Not only does Re Waring not help him, but it highlights the distinction.

28. Mr Allen QC's arguments in respect of both the second and third applications must in those circumstances, in our judgment, founder against the unanswerable case that, as appears in paragraph 19.2(b) above, such agreement, acquiescence or estoppel cannot clothe the Employment Tribunal with jurisdiction to hear them. Nor could any amount of disapproval, disquiet or lack of comprehension as to the course taken by the Respondent, criticised by Mr Allen QC, whether it should be characterised as abuse of process or not, clothe the Employment Tribunal with jurisdiction. We reach this conclusion with some regret, not simply by reference to the course taken by the Respondent, to which we have referred in paragraph 22 above, but also by virtue of the fact that it was the Applicant, and not the Respondent, who drew our attention to the differences between the three applications, a distinction seemingly not drawn below, or, if drawn, certainly not addressed by the Employment Tribunal. But for that, we would simply have agreed with the submission of Mr Allen QC to the Employment Tribunal, which the Tribunal recites at paragraph 3 of its Decision namely that "the order of the Employment Appeal Tribunal in Sawyer v Ahsan directing us to hear the matter on its merits was binding upon us. By that decision, the question of our jurisdiction to hear these complaints, as between these present parties, had been closed. Leave to appeal that decision to the Court of Appeal was granted to the respondent unopposed. The respondent chose not to appeal." In respect of the second and third applications, in which no such order was made, the Respondent's appeal must be allowed. So far as concerns the first application, however, the appeal on jurisdiction must be dismissed. The balance of the Respondent's appeal will now fall to be dealt with, for which appropriate directions should be agreed or ordered.