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In this article we examine the case of Irwell Insurance Company Ltd v Watson & Ors [2021] EWCA Civ 67 and examine the consequences for potential future claims.

Case summary

The Employment Tribunal (ET) has no inherent jurisdiction. That is to say, it cannot hear claims on anything, but only those specific things provided for by statute. Most of these are fairly obvious: employment rights, equality claims, TUPE issues, etc. However, the Court of Appeal recently had to consider just how far the scope could extend, which involved some fairly contextual legislative interpretation.

The background

The claim was for unfair dismissal and disability discrimination. However, the former employer of the Claimant entered voluntary liquidation and has since dissolved. Despite this, they were covered by a policy of insurance against awards arising from ET claims by the Appellant, Irwell Insurance, provided that they took advice from specific employment law advisors. When the employers went into liquidation, the Claimant joined Irwell to the claim as a Respondent, stating that liability transferred to them under the Third Parties (Rights against Insurers) Act 2010.

The 2010 Act

The problem for the ET was that the Act does not mention the “Employment Tribunal” specifically, and as the ET only has jurisdiction in cases statutorily provided for, Irwell claimed this meant the insurance issue had to be dealt with in the ordinary courts, and so the judge stayed the ET proceedings in order that the issue might be determined elsewhere. The Claimant appealed to the EAT which allowed it, but Irwell appealed further to the Court of Appeal.

Is the tribunal a court?

The arguments at the Court of Appeal centred around the wording of the 2010 Act. Section 2 (6) of the Act reads:

6. Where the court makes a declaration under this section, the effect of which is that the insurer is liable to P, the court may give the appropriate judgment against the insurer.

The argument of the Claimant was that, here, “the court” refers to the ET as well as just ordinary courts. The Claimant drew the court to classic authorities on statutory interpretation, asserting that Parliament only enacts an Act in order to make some change, or fix some blemish. Accordingly, said the Claimant, it is right to interpret those Acts by reference to the context of what came before, and what they aimed to correct. The Claimant’s argument was that the Act was creating a “one-stop shop” for claims which included an insurance element, and that it would be wrong for this to apply to, for example, personal injury or contract claims, but not employment law.

Irwell contended that, as the ET does not make declarations, it was not the intention of the statute to cover the ET. As well as this, the Act references “Particulars of Claim”, which is something associated with the ordinary courts, rather than the “claim forms” used by the ET.

Judgment

The Court dismissed Irwell’s appeal, saying that the ET is certainly covered by the 2010 Act as a “court”. Therefore, it was able to consider the question of insurance coverage, without having to stay the proceedings.

The Employment Tribunal has always been a slight outlier, and questions of jurisdiction and role have been floating around for as long as it has existed. Bean LJ’s leading judgment gives a strong case for expanding the view of its otherwise fairly narrow jurisdiction, and to start considering the word “court” interchangeably with “tribunal”.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2021/67.html

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