CA-2025-000379 - [2025] EWCA Civ 1357

Swift J starts by considering the meaning of the term “jurisdiction”. Para. 29 of his judgment begins:

“The word ‘jurisdiction’ can refer to different concepts depending on context.  For present purposes the word is synonymous with having competence to hear certain types of claim.”

He goes on to support that conclusion by reference to section 2 of the ETA and (by way of illustration) section 111 (1) of the ERA. At para. 30 he notes that the term can be used in a different sense, which can, he says, “give the wrong impression”. He gives as an example the limitation provisions applying to the various kinds of claim over which the ET is given jurisdiction. He refers to section 111 (1) and (2) of the ERA (Footnote: ⁵), and says:

“The reason the application of subsection (2) may not be agreed by the parties but must be a matter decided by the Tribunal is not the result of a free-standing notion of jurisdiction but because, correctly construed, that is what subsection (2) requires.”

Likewise, he says, “whether or not [section 18A] provides an absolute bar to an employment tribunal considering a claim depends on what is the proper meaning and effect of the provision”. His point, as I understand it, is that it is unhelpful for this purpose to use the language of jurisdiction, which is concerned only with “competence”.

I agree with Swift J that the term “jurisdiction” can be used in different senses and can accordingly sometimes be a source of confusion. But I do not think that there is any real difficulty about the relevant meaning in this case. The ET plainly had what is sometimes called “subject-matter competence” as regards the detriment claim by virtue of section 48 (1A) of the ERA (read with section 2 of the ETA). But we are concerned with particular statutory limits on the tribunal’s power to exercise that jurisdiction. In this case the limits take the form of a step which the claimant is required to take before invoking the jurisdiction, but there are other examples of such limits, most obviously limitation provisions of the kind found in the ERA (Footnote: ⁶). Such limits are themselves commonly referred to as jurisdictional in nature – or “going to jurisdiction” – because where they apply the tribunal is precluded by statute, irrespective of the wishes of the parties, from exercising the jurisdiction which it would otherwise enjoy to determine a dispute of the relevant kind; and I see nothing inapt or confusing in using that label.

I am not sure that that entirely corresponds with Swift J’s analysis. However, we come out at the same place, namely that what has to be decided is whether, applying ordinary principles of construction, the requirements of section 18A are of such a character that if they are not satisfied the tribunal has no power to determine the claim.