Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 67/08 FET

CLAIMANT: William Thomas Campbell

RESPONDENT: MPA Recruitment Ltd

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr S Pyper

Mr P McCrossan

DECISION

It is the unanimous decision of the Tribunal that it does not have jurisdiction to entertain the claimant’s claim for discrimination on the grounds of religious belief or political opinion.

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Miss Anne Finnegan instructed by J Blair Employment Law Solicitors.

Sources of Evidence

1. The claimant gave evidence on his own behalf. Evidence was given on behalf of the respondent by Nuala McQuade, Julie Roddy and Desmond O’Brien. The Tribunal also had before it a witness statement of John McHugh. Mr McHugh was unable to attend the Tribunal and insofar as the Tribunal took any account of his statement, it gave it weight only so far as it went to corroborate the evidence given by Mr O’Brien.

2. The Tribunal also had an agreed bundle of documents before it.

The Claim and the Defence

2. The claimant claimed that he had been discriminated against on the grounds of his religious belief and political opinion. The respondent contended that the Tribunal had no jurisdiction to consider the claim of the claimant and in the alternative claimed that he was not discriminated against.

The Relevant Law

2. Article 6 of the Fair Employment and Treatment (Northern Ireland) Order 1998 as amended states “6. – (1)” for the purposes of this Order, employment is regarded as being employment in Northern Ireland if the employee –

[(a) Does his work wholly or partly in Northern Ireland, or

(b) Does his work wholly outside Northern Ireland and paragraph (1)(A) applies].

(1A) This paragraph applies if –

1. The employer has a place of business at an establishment in Northern Ireland;

2. The work is for the purposes of the business carried on at that establishment; and

3. The employee is ordinarily resident in Northern Ireland –

   1. At the time when he applied for or is offered the employment, or

   2. At any time during the course of the employment.

As the claimant was not able to successfully negotiate this jurisdictional hurdle, the Tribunal does not consider that it is necessary to set out any further provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 as these matters simply did not arise as a result.

Change to the Title of the Respondent

2. The claimant had initially presented his claim to the tribunal against MPA Recruitment. However, at the hearing of this matter, he accepted the contention of the respondent that the correct name of the respondent was MPA Recruitment Limited. Therefore the Tribunal amended the respondent’s name in the heading of this case to read “MPA Recruitment Limited”

Findings of Fact

2. The respondent is a Northern Ireland Limited Company carrying on business as a recruitment agency.

3. The respondent company was originally established in the City of Derry in 1997, and over the years opened other branches in Northern Ireland.

4. The respondent company had a client in Letterkenny, County Donegal known as Pacificare. Pacificare made it clear that it would do business with the respondent and accordingly the respondent company established a company in the Republic of Ireland which was also named MPA Recruitment Limited. This was a separate business to the Northern Ireland company.

5. The Republic of Ireland Company became registered for VAT in the Republic of Ireland with effect from 1 October 2007 and at that time Julie Roddy of the respondent company applied for a licence from the Department of Enterprise Trade and Employment in the Republic of Ireland. This licence was actually issued by the Department on 19 June 2008, but the company was trading and paying VAT and other Government taxes in the Republic of Ireland pending the issue of that licence.

6. From 1 December 2007 the Republic of Ireland Company opened an office in Letterkenny. However most of the administration of the Republic of Ireland company including the maintenance company was carried out in the City of Derry office of the Northern Ireland company.

7. As part of his case, the claimant contended that the Republic of Ireland company was trading illegally, but he did not support his contention with any solid evidence which the Tribunal could consider.

8. On the claimant’s case he said that he saw a job advertisement on the FAS website and contended that some of the documents in his bundle were copies of the “MPA advertisement for my job”. He contended that he had responded to this advertisement by making contact with MPA in the City of Derry. The Tribunal does not accept the claimant’s contention as the advertisement referred to a post with a start date on 28 January 2008, and the claimant started work at Pacificare on 10 December 2007. His employment was terminated with Pacificare on 15 January 2008. The respondent company’s Miss McQuade gave evidence that it was Pacificare who contacted her sending her the CV of the claimant as he had been in touch directly with them seeking employment. As a result of receiving the claimant’s CV, Miss McQuade contacted the claimant and invited him for interview on 4 December 2007. On the balance of probabilities the tribunal accepts Miss McQuade’s version of events. Plainly the claimant had not been recruited with respect to the advertisement which appeared in his bundle, which was dated after his employment.

9. The claimant did not have a written contract of employment. Miss McQuade gave evidence to the Tribunal. She had explained to the claimant that he would be employed on the following terms:

   1. He would be engaged as a temporary worker;

   2. He would be assigned to Pacificare in Letterkenny;

   3. That Pacificare would be entitled to terminate his contract at any time;

   4. That he would be paid in Euros;

   5. That he would need to set up a bank account in the Republic of Ireland into which his wages could be paid although in the interim he could be paid by Euro cheque and;

   6. Between assignments there would be no contract of employment between himself and MPA Recruitment Ltd.

As the claimant only took issue with points 3 and 6 of this list of terms, saying for example that he was entitled to a one year contract with Pacificare the Tribunal considers it more likely than not on the balance of probabilities that this list of terms did in fact form the basis of the claimant’s contract of employment with Pacificare.

2. The respondent accepted that its terms of engagement document for use in the Republic of Ireland was not in existence at the time of the claimant’s interview, but contended that this document was the basis of the oral contract made between the claimant and MPA. In reaching its decision, the Tribunal has attached almost no weight to the contention that the terms of engagement in the Republic of Ireland, which were not in place at the time the claimant was recruited, constituted evidence of his terms and conditions of employment. However, it was clear that the claimant was going to be working exclusively in the Republic of Ireland for Pacificare and was to be paid in Euros. Furthermore all statutory deductions such as tax PRSI (Pay Related Social Insurance) was paid to the Republic of Ireland Government. The claimant accepted that this was the case.

3. The claimant was employed to work as a technical analysis for Pacificare giving telephone support on issues affecting the IT systems of Pacificare.

4. There was uncontraverted evidence before the Tribunal that Pacificare was invoiced in respect of the claimant’s services in Euros. Payment for the claimant’s services was received by the Republic of Ireland MPA Recruitment Limited in Euros into their bank account held at 8 Market Square, Buncrana, County Donegal.

5. There was no evidence before the Tribunal that the claimant was anything other than a worker supplied by the respondent’s recruitment company to Pacificare.

6. There was no evidence before the Tribunal that the respondent company in any way benefited from the claimant’s work for Pacificare.

Conclusion on the Issue of Jurisdiction

2. It is the decision of the Tribunal that the claimant carried out his work for Pacificare wholly outside Northern Ireland and the exceptions set out in sub-paragraph (1A) of Article 6 did not apply to his work. The tribunal finds that the claimant was engaged under a contract for services by the Republic of Ireland company and during his assignment with Pacificare he would be paid directly by the Republic of Ireland company after requisite statutory deduction had been made. Although the claimant was not asked to sign the terms of engagement document in respect of the Republic of Ireland as it did not at that time exist, neither was he asked to sign the terms of engagement document for Northern Ireland, and the Tribunal accepts that this supports the respondent’s case that the temporary work was to be carried out in the Republic of Ireland.

3. The Tribunal also considers that plainly the respondent was employed as a technical analyst on Pacificare business. There was no suggestion that he was doing any work for the purposes of MPA Recruitment Limited business on Pacificare premises. Furthermore, it was not the decision of MPA Recruitment Limited to terminate the claimant’s contract of employment with Pacificare. That decision was taken by Pacificare who said that they no longer required the claimant.

4. As tax and PRSI were deducted from the claimant’s remuneration, it goes without saying that the claimant was not paying any deductions within Northern Ireland.

5. There was no evidence provided by the claimant to back up his contention that his work for Pacificare was for the purposes of the business carried on by MPA Recruitment Limited. Furthermore, as the Republic of Ireland MPA Recruitment Limited company only has a payroll function being administered from the City of Derry office, the Tribunal is unable to find sufficient evidence that MPA Recruitment Limited (Republic of Ireland) had a place of business at an establishment in Northern Ireland.

6. The claimant contended that he had a contract of employment with the Northern Ireland MPA Recruitment Limited. However, the balance of the evidence suggested that in so far as a contract of employment existed at all it would have existed with MPA Recruitment Limited in the Republic of Ireland, as it was that company that received remuneration for the placement of the claimant with Pacificare.

7. For all of the above reasons, the Tribunal does not accept that it has jurisdiction to deal with the claimant’s claim and accordingly the alleged complaints of discrimination on the grounds of religious belief and/or political opinion do not fall to be considered.

Chairman:

Date and place of hearing: 23, 24, 27 March 2009, at Belfast

Date decision recorded in register and issued to parties: