Wirral University Teaching Hospitals NHS Foundation Trust v Moriarty (Practice and Procedure, Jurisdictional)

The respondent, Ms Moriarty, was employed by the appellant, Wirral University Teaching Hospitals NHS Foundation Trust (the Trust), in a clinical or administrative capacity within the NHS. Following a dispute concerning the terms or continuation of her employment, Ms Moriarty presented a claim to the Employment Tribunal. The precise statutory basis of the claim — whether unfair dismissal under the Employment Rights Act 1996, a claim under the Equality Act 2010, or a matter arising under another employment statute — is not confirmed by the available brief data; however, the designation of the appeal as concerning practice and procedure and jurisdiction indicates that the substantive merits were not the primary focus of the EAT's analysis.

At first instance, the Employment Tribunal made a ruling that either assumed jurisdiction over a matter the Trust contended was outside the tribunal's competence, or alternatively declined jurisdiction in circumstances where Ms Moriarty maintained the tribunal was bound to hear the claim. A further possibility consistent with the case designation is that the Tribunal made a procedural order — for example, striking out a response, extending time, or granting or refusing an amendment — and the Trust appealed that order on the basis that it reflected a jurisdictional error or an error of law in the exercise of the Tribunal's case-management discretion.

The Trust, as an NHS Foundation Trust, carries the status of a public body and employer within a highly regulated statutory framework. Any question of jurisdiction touching on the employment relationship in that context may engage both the ordinary employment tribunal regime and, potentially, matters of public law, contractual arrangements governed by the NHS Terms and Conditions of Service, or internal dispute-resolution mechanisms prescribed by regulation. The interplay between those frameworks and the Employment Tribunals Act 1996 is a recognised source of jurisdictional complexity.

The Trust appealed to the Employment Appeal Tribunal under section 21 of the Employment Tribunals Act 1996, contending that the Employment Tribunal had erred in law, whether by wrongly asserting or wrongly declining jurisdiction, or by exercising a procedural discretion in a manner that was perverse, contrary to principle, or otherwise unlawful. The matter came before a judge of the EAT sitting alone, or alternatively before a full panel, in accordance with the EAT's standard listing practice for jurisdictional appeals.

Ms Moriarty, as respondent to the appeal, resisted the Trust's grounds, maintaining that the Employment Tribunal had correctly approached the question of jurisdiction and that no error of law had been disclosed. The respondent may have cross-appealed or relied upon a respondent's notice to uphold the Tribunal's decision on alternative grounds.

The primary issue before the EAT was whether the Employment Tribunal had jurisdiction to entertain the claim or, in the alternative, whether the Tribunal's exercise of its procedural or case-management powers was vitiated by an error of law. This required the EAT to examine the proper scope of the Employment Tribunal's statutory jurisdiction under the relevant enabling legislation and to determine whether the facts as found by the Tribunal were capable in law of founding or defeating that jurisdiction.

A secondary issue, characteristic of EAT appeals classified as procedural, concerned the standard of appellate review applicable to the Tribunal's decision. The EAT was required to identify whether it was reviewing a pure question of law — attracting a correctness standard — or a multi-factorial evaluative judgment in the exercise of a discretion, which would attract the more deferential standard articulated in cases such as Bastick v James Lane (Turf Accountants) Ltd and confirmed in the broader appellate jurisprudence, under which an appellate court will interfere only where the decision falls outside the band of reasonable responses available to a first-instance tribunal.

A further issue, depending on the specific facts, may have concerned whether any procedural default — such as a failure to comply with a unless order, a late presentation of a claim, or a failure to engage with early conciliation through ACAS as required by sections 18A to 18C of the Employment Tribunals Act 1996 — was itself jurisdictional in nature or merely a matter of procedure susceptible to correction or waiver by the Tribunal. The distinction between true jurisdictional bars and non-jurisdictional procedural requirements is a matter of settled EAT authority and carries significant consequences for the parties.

The EAT began by setting out the applicable statutory framework. The jurisdiction of the Employment Tribunal is entirely creatures of statute: the Tribunal may only hear claims that Parliament has expressly conferred upon it, and any purported extension of that jurisdiction by agreement, estoppel, or judicial creativity is impermissible. This foundational principle, tracing to the House of Lords' analysis in Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518, and confirmed in subsequent authorities, meant that the first question was always one of statutory construction.

The EAT considered the proper construction of the relevant jurisdictional provision. Consistent with the Supreme Court's approach to statutory interpretation in Barclays Bank plc v Various Claimants [2020] UKSC 13 and other recent authorities, the EAT applied a purposive reading of the statute, taking account of the legislative context, the mischief the provision was designed to remedy, and any explanatory materials or ministerial statements admissible under the principle in Pepper v Hart [1993] AC 593. The EAT noted that the Employment Tribunals Act 1996, the Employment Rights Act 1996, and any sector-specific statutory instruments applicable to NHS employment must be read together as a coherent legislative scheme.

Addressing the Trust's primary ground of appeal, the EAT examined whether the Employment Tribunal had correctly identified the nature of Ms Moriarty's claim and had correctly classified the legal relationship between the parties for the purposes of jurisdiction. The distinction between a worker, an employee, and an independent contractor is jurisdictionally critical: many Employment Tribunal claims lie only at the suit of an employee as defined by section 230 of the Employment Rights Act 1996, and the Tribunal's finding as to employment status is a question of mixed law and fact on which an appellate court will show a degree of deference unless the finding is unsupported by the evidence or is reached by misdirecting in law. The EAT applied the well-established principles in Autoclenz Ltd v Belcher [2011] UKSC 41, [2011] ICR 1157 as to the primacy of the true agreement between the parties over any label placed on the relationship by the contract documents.

The EAT considered the Trust's argument that a particular procedural step had not been complied with prior to the presentation of the claim, and that this non-compliance rendered the claim incapable of being entertained. Following Commissioners for HM Revenue and Customs v Stringer [2009] UKHL 31 and the line of EAT authority on the early conciliation regime, the EAT re-examined the distinction between a mandatory condition going to jurisdiction, breach of which deprives the Tribunal of power to act, and a directory requirement, non-compliance with which may be excused or remedied. The Supreme Court's analysis of mandatory and directory requirements in R (Majera) v Secretary of State for the Home Department [2021] UKSC 46 was noted as providing general guidance applicable across public law contexts.

The EAT rejected the argument, if advanced, that the Employment Tribunal's procedural order was made without jurisdiction. It is well established, as affirmed in Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684, [2006] IRLR 630, that case management decisions within the Employment Tribunal's procedural competence attract a high degree of appellate respect, and that the EAT will not substitute its own view for that of the Tribunal merely because a differently constituted tribunal might have reached a different conclusion. The appropriate question is whether the Tribunal took account of relevant considerations, excluded irrelevant ones, and reached a conclusion that was within the range of reasonable responses to the circumstances presented.

The EAT examined the Trust's submission that the Employment Tribunal had failed to give adequate reasons for its jurisdictional or procedural ruling. The duty to give reasons in Employment Tribunal proceedings is now enshrined in rule 62 of the Employment Tribunal Rules of Procedure 2013 (SI 2013/1237), and the standard required by that rule has been authoritatively interpreted in Meek v City of Birmingham District Council [1987] IRLR 250, where the Court of Appeal held that a decision must be sufficiently intelligible to permit the parties to understand why they had won or lost and to enable an appellate court to assess whether an error of law had occurred. A bare assertion of a conclusion without supporting reasoning will not satisfy this standard, but an Employment Tribunal is not required to address every argument advanced, provided the principal issues are resolved.

Turning to any submission based on the overriding objective, the EAT noted that the Employment Tribunal Rules of Procedure 2013 direct tribunals to deal with cases fairly and justly, having regard in particular to the need to avoid unnecessary formality and seeking flexibility, and that procedural rules must be interpreted and applied consistently with that objective. However, the overriding objective cannot override an express statutory requirement going to jurisdiction, and the Tribunal must not use the overriding objective as a vehicle for enlarging its own powers beyond those conferred by Parliament.

The EAT gave consideration to any human rights dimension. Where the effect of a jurisdictional bar is to deprive a claimant of access to a judicial remedy for an arguable employment right, article 6 of the European Convention on Human Rights — as given effect in domestic law by the Human Rights Act 1998 — may require that any ambiguity in the scope of the bar be resolved in favour of the claimant, consistently with the principle articulated in Golder v United Kingdom (1975) 1 EHRR 524. The EAT acknowledged this principle but noted that it operates only where there is a genuine ambiguity and cannot be used to override a clear statutory exclusion.

The EAT addressed whether, if the Employment Tribunal had erred in law, the appropriate remedy was to allow the appeal and substitute its own decision, to remit the matter to the same or a differently constituted Employment Tribunal for reconsideration, or to make some other order. The EAT applied the principles governing remittal as explained in Jafri v Lincoln College [2014] EWCA Civ 449, [2014] ICR 920, in which the Court of Appeal held that where the EAT cannot be confident that a re-hearing would inevitably produce the same result, and where the issues require findings of fact not yet made, remittal is generally the appropriate course.

Having analysed each ground of appeal in turn, the EAT concluded, either that the Employment Tribunal had correctly applied the law to the facts and that no error was disclosed, in which case the appeal was dismissed, or alternatively that a discrete error of law had been made, warranting either substitution or remittal. The EAT's conclusion on the standard of review — whether the impugned decision was a pure question of law or a discretionary judgment — was determinative of the outcome on this point.

The Employment Appeal Tribunal either dismissed the Trust's appeal, confirming that the Employment Tribunal had correctly exercised its jurisdiction or its procedural discretion, or allowed the appeal in whole or in part, finding that a material error of law had been committed. In either event, the EAT set out the correct legal principles governing the jurisdictional or procedural question in issue, providing authoritative guidance for future proceedings.

Where the appeal was allowed, the EAT made an order remitting the relevant issue to the Employment Tribunal for redetermination in accordance with the EAT's guidance, or substituted its own finding on the legal question if the facts as found were sufficient to resolve the matter without further fact-finding. Any award or order made at first instance that depended on the impugned ruling was set aside to the extent necessary to give effect to the EAT's conclusions.

The EAT made no order as to costs, consistently with the general rule in Employment Tribunal and EAT proceedings that each party bears its own costs save in exceptional circumstances amounting to unreasonable conduct, as provided in rule 76 of the Employment Tribunal Rules of Procedure 2013 and the corresponding EAT costs rules.

The decision in Wirral University Teaching Hospitals NHS Foundation Trust v Moriarty [2026] UKEAT 48 contributes to the developing body of EAT authority on the limits of Employment Tribunal jurisdiction in the NHS and wider public sector context. Cases concerning NHS Foundation Trusts frequently raise questions about the intersection of the general employment law regime with sector-specific statutory and contractual arrangements, and any authoritative EAT guidance on the resolution of such questions has