Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1058/07

CLAIMANT: Colin Mailer

RESPONDENT: Lagan Construction Limited

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is that the claimant was employed by the respondent at the date of his dismissal but that the tribunal does not have jurisdiction to consider the claimant's claim of unfair dismissal, having regard to the territorial jurisdiction of the tribunal under the Employment Rights (Northern Ireland) Order 1996 in relation to that claim.

Constitution of Tribunal:

Chairman (Sitting Alone): Ms J Knight

Appearances:

The claimant did not appear and was not represented at the hearing.

The respondent was represented by Mr P Coll, Barrister-at-Law, instructed by Elliott Duffy Garrett Solicitors.

Issues:

1. The issues to be determined by the tribunal were:

a) Whether the tribunal has jurisdiction to consider the claimant's claim of unfair dismissal, having regard to the territorial jurisdiction of the tribunal under the Employment Rights (Northern Ireland Order) 1996 in relation to any such claim.

b) Whether at the time of his dismissal the claimant was employed by the respondent or Lagan Caribbean Limited.

2. The claimant's solicitor wrote to the Office of Industrial Tribunals on the 2^nd October 2007 to indicate that the claimant was unable to attend the hearing as he is now working on a contract in Trinidad Tobago and it was not possible for him to secure time off work to fly to Northern Ireland. It was indicated that due to the issue of costs the claimant's solicitor would not be attending. A witness statement prepared by the claimant and legal submissions were enclosed with this letter with a request that the Pre-Hearing Review proceed in the absence of the claimant and his solicitor.
3. By letter to the Office of the Tribunals dated the 3^rd October 2007 the respondent's solicitor applied to amend the respondent's response on the basis of recent instructions that Lagan Caribbean Limited and not Lagan Construction Limited was the claimant's employer at the time of his dismissal. This correspondence was copied to the claimant's solicitor in advance of the hearing and the duty chairman directed that this application should be dealt with at the Pre-Hearing Review. The claimant's solicitor sent a further letter dated the 8^th October 2007 which contains submissions in response the respondent's application to amend the response form. No objection was made on behalf of the claimant to this application being dealt with at the pre hearing review.
4. The chairman decided to deal with both the issues in the absence of the claimant and his solicitor. The chairman considered the witness statement of the claimant dated the 1^st October 2007 and heard the oral evidence of Ms Jane Louise Howard and Mr Colin Loughran for the respondent. The chairman took into account the written submissions of the claimant's solicitor dated the 2^nd and 8^th October 2007 respectively and the oral submissions of counsel for the respondent. The chairman carefully read the contents of an agreed bundle of documentation.

Facts

5. Having considered all the evidence the chairman found the following relevant facts to be proven on a balance of probabilities:
6. The respondent company Lagan Construction Limited is a company registered in Northern Ireland (company number NI005233) which operates from headquarters in Belfast and has a network of regional offices in site locations world wide. It is part of a complex group of companies under the parent company known as Lagan Holdings Limited. The respondent is involved civil engineering projects, mainly roads and airports both within the UK and internationally, including the Caribbean area. Mr Colin Loughran is International and Commercial Director for the respondent. The majority of the companies in what was referred to as the "Lagan stable" are companies registered in Northern Ireland. However there are a number of off shore companies including Lagan Caribbean Limited which was incorporated in the Cayman Islands on the 7^th July 2000 with a registered share holder of Lagan International Limited, itself a company registered in Northern Ireland. Mr Loughran told the tribunal that Lagan International Limited was incorporated in Northern Ireland in or about 2001.
7. The claimant is a British Citizen and is married to a citizen of El Salvador. He has family in Newcastle-upon-Tyne including his son and mother. He states that he and his wife moved between Newcastle and El Salvador but that his home was always in Newcastle. The tribunal noted from documentation that the claimant's address in Newcastle is the same address as that of his mother and that only an El Salvadoran address is given for his wife. The claimant has never worked or resided in Northern Ireland.
8. It was common case that the claimant was recruited by a Mr Shane Garvey in September 1999 to work on a construction project in Surinam. However there is a conflict of evidence between the parties as to whether the claimant was based in the United Kingdom or El Salvador at the time of his recruitment. The respondent claimed that Mr Garvey was tasked with recruiting staff for the Surinam project and was himself based in the Caribbean from January 1999 until he left the company in 2003. Mr Garvey was a named director of Lagan Caribbean Limited when it was initially set up in 2000 and the claimant was based in El Salvador when he was recruited by Mr Garvey.
9. The claimant's case is that he met Mr Garvey, who was based in Northern Ireland, when he was working on "other projects" outside the United Kingdom. The claimant was in Newcastle in 1999 when he was telephoned by Mr Garvey who asked him to work on the Surinam project. However the claimant's evidence was also that he worked in the UK on various road building projects from the early 1980s through to 1997 and between 1997 and 1999 he was involved in road building projects in El Salvador and Nicaragua. "Because I was spending a lot of time with my wife in El Salvador, I was not required to pay tax in the UK and so it suited me to work abroad." The chairman finds the claimant's statement to be rather inconsistent in this respect and of course did not have the benefit of hearing oral evidence from the claimant. Weighing the evidence the chairman finds on a balance of probabilities that the claimant's main residence was with his wife in El Salvador at the time of his recruitment and that he probably met Mr Garvey when they were both working on projects in the Caribbean area. The chairman is satisfied that the claimant was identified as a potential employee because he was already living and working outside the United Kingdom. The chairman does not accept that the claimant was residing in Newcastle when he was recruited by Mr Garvey.
10. Mr Loughran gave evidence that the employer of both the claimant and Mr Garvey at this time was Whitemountain Surfacing Limited, another company in the Lagan stable. At the time Mr Loughran claimed he was himself contracts manager for Whitemountain Surfacing and was based in Belfast. He contended that Mr Garvey was also an employee of Whitemountain Surfacing Limited and that Mr Garvey was based in the Caribbean from January 1999 until he left the company in 2003. According to Mr Loughran, Mr Garvey was a director of Lagan Caribbean Limited when it was initially set up in July 2000. There was no documentary evidence to support this.
11. The claimant transferred to work in Grenada on an international airport in or around January or February 2000, at this point, according to the respondent, still employed by the Whitemountain Surfacing Group. The Grenada project finished in or about August or September 2000 and the claimant was then sent to a project in Hong Kong in October 2000 where he worked until February 2001. Mr Loughran explained that at this point the claimant's employment transferred to Lagan Hong Kong Limited although Whitemountain Surfacing continued to pay the claimant's salary. Whitemountain Surfacing Limited then reclaimed the salary from Lagan Hong Kong Limited.
12. From March 2001 until July 2001 the claimant worked on the Cayman Islands Project when it is alleged his employment transferred to Lagan Caribbean Limited. Between July 2001 and January 2003 the claimant worked on various projects in the Caribbean area. Between January 2003 and June 2003 the claimant was employed in Grenada in South America and then went from Grenada to St Lucia were he worked until June 2004. Between July 2004 and December 2005 the claimant was employed in Nassau in the Bahamas. In December 2005 he went to work in Jamaica were he worked until the termination of his employment except for short periods spent in Puerto Rico and San Juan.
13. Mr Loughran contended that from March 2001 the claimant's employer was Lagan Caribbean Limited. His wages were paid directly into his bank account by Lagan Construction Limited on behalf of Lagan Caribbean Limited as the respondent provided administrative and financial support from Belfast. The wage slips in the bundle confirm that the claimant was paid an off shore salary with no payments made for tax and national insurance contribution or employers national insurance liability. According to Mr Loughran, Lagan Caribbean Limited reimbursed these wages to Lagan Construction Limited in full once a year. There was no documentation produced to show the reimbursement of these payments by Lagan Caribbean Limited. The respondent did produce a schedule of wages which had been prepared by Lagan Construction Limited dated the 2^nd May 2007 in relation to persons working in Jamaica. Although this set out the salaries paid for that particular period the chairman did not consider this constituted proof that the wages were being reimbursed to the respondent by Lagan Caribbean Limited. There is no mention of the latter company in that document. Similarly the chairman did not consider the diagrams of the company structure in themselves constituted proof that the claimant's employment had been with any particular company within the group at any particular time.
14. The evidence available to the tribunal suggests that the claimant was line managed by project managers who were based in Jamaica and the Caribbean area who gave him work instructions on a day to day basis. There was no evidence in the view of the chairman to prove on a balance of probabilities that prior to the decision to terminate his employment the claimant liaised directly with the Belfast headquarters with regard to pay, holidays and to arrange flights.
15. Mr Loughran contended that it would not have been possible for the claimant to be employed by Lagan Construction Limited from the start of his employment as this company was not incorporated until 1^st June 2006. However the tribunal did not have any documentary evidence before it as to the date of incorporation of this company. The tribunal notes that undated promotional material for "Lagan Construction" contained in the bundle states the registered office and company number of Lagan Construction Limited referred to above and mentions an international airport project in Nassau and other projects in the Caribbean.
16. On the 24^th February 2007 the claimant was informed by James Keogh, Project Manager segment 2 in Jamaica that he was being made redundant as from 5^th March 2007 although he would be paid until the end of March. He was informed that this was due to a down turn in current work levels and if any suitable work arose in the future they would consider taking him back on. Mr Keogh asked the claimant whether he wished to stay on in Jamaica for personal/vacation reasons, which was declined by the claimant who said that he preferred to leave on 5^th March. The claimant asked Mr Keogh to book him a flight to Newcastle. Mr Keogh's line manager was Mr John McDevitt, Regional Contracts Manager in the Caribbean area.
17. The claimant advised Mr Keogh that he had been informed that there was work available for him on segment 3. However it was confirmed to him on 4^th March that his redundancy was to proceed. It appears from the documentation that the claimant refused to accept written confirmation of the termination of his employment from Mr Keogh and insisted that the letter had to be signed by Mr Loughran or Mr McDevitt. However when he was provided with a letter signed by Mr McDevitt dated 5^th March, the claimant refused to accept it as it did not state his role, notice period and was not on headed notepaper. The claimant's flight arranged for 5^th March 2007 had to be cancelled. The following day Mr McDevitt, sent a further letter to the claimant confirming the decision to terminate his employment as from the 31^st March 2007 and advising him of his entitlement to a redundancy payment to cover his eight year service period. Mr McDevitt signed this letter "for and on behalf of Lagan Construction Limited."
18. Ms Howard commenced employment as Human Resources Manager with the respondent approximately 18 months prior to the Pre-Hearing Review and was not employed by the respondent at the time of the claimant's recruitment. She told the tribunal that she was involved in the "aftermath" of the termination of Mr Mailer's employment and that she had assumed that he was in fact employed by Lagan Construction Limited because she "had no evidence to the contrary." She was aware of the existence of Lagan Caribbean Limited and it was clear there were some employees who had written contracts of employment with Lagan Caribbean Limited. However there was nothing in the records to show that the claimant was employed by Lagan Caribbean Limited and the position with the structure of the companies within the Lagan group was not clear cut. Ms Howard frankly admitted that she did not understand the legal structure of the Lagan group of companies. It is noted that the claimant's employer is stated to be Lagan Holdings Limited in an application in respect of the claimant for a Hong Kong visa/entry permit signed by the claimant on the 3^rd September 2000, the claimant's CV which is appended to that application stating Lagan Holdings Limited to be the claimant's employer from September 1999 through to September 2000 and a letter from the Ministry of Labour of Jamaica dated the 24^th October 2002. On other documentation for example a Bahamas work permit dated the 15^th June 2005 and a new employee form dated the 24^th May 2004 the claimant's employer is stated to be Lagan International.
19. Ms Howard told the tribunal that at the time the claimant was made redundant the Lagan Group was in the process of issuing contracts to employees and had he not been made redundant he would have been issued with a contract of employment with Lagan Caribbean Limited. Prior to the claimant's dismissal, Ms Howard liaised with Mr Loughran and Mr McDevitt as to the claimant's contractual position and his entitlement to and the amount of redundancy pay that he would be entitled to receive. This is recorded in a number of emails.
20. On 1^st March 2007 Ms Howard sent an email to Mr McDevitt which she copied to Mr Loughran and a Mr Vincent Curran, People Development Manager for Lagan Construction Limited, confirming there was no contractual documentation between the claimant and Lagan Construction, Lagan Caribbean or Lagan Holdings. The email also indicates that she had discussed the matter with Colin Loughran and she had suggested that the claimant be paid statutory redundancy entitlement that would apply to UK employees.
21. By email dated the 8^th March 2007 Jane Howard responded to an enquiry by John McDevitt that neither Lagan Caribbean nor Lagan Construction standard contracts included provision for redundancy pay. She confirmed her understanding that Lagan Caribbean employees would be subject to statutory provisions in Grand Cayman but stated that as the claimant "did not have a contract with either company, we have used the UK guidelines." She suggested that previous enquiries had revealed that Grand Cayman employment laws with regard to redundancy situations were very similar to laws in the UK.
22. On the 8^th March 2007 the claimant notified Colin Loughran of his intention to appeal against the decision to terminate his employment by reason of redundancy. Arrangements were made by Ms Howard for the claimant to attend the appeal hearing which took place on the 6^th April 2007 in Belfast. Mr Loughran told the tribunal that the appeal took place in Belfast because the claimant was at that time visiting his mother in Newcastle. The tribunal accepted that had the claimant elected to stay in Jamaica or return to El Salvador, the appeal would have been arranged in Jamaica. Following the appeal Mr Loughran affirmed the original decision to dismiss by way of redundancy.
23. The claimant lodged his complaint of unfair dismissal with the Office of the Tribunals on 14^th May 2007. The respondent lodged a response on 3^rd July 2007 denying unfair dismissal. At this stage it was not contended by the respondent that it was not the claimant's employer. The basis for its defence was other than the respondent being a company registered in Northern Ireland, the claimant's employment has no connection with Northern Ireland.
24. It was submitted on behalf of the claimant that at all times during his employment and at the date of his dismissal was employed by the respondent. It was further submitted that the tribunal has territorial jurisdiction to hear the claimant's complaint of unfair dismissal because the respondent is a company incorporated in Northern Ireland and the claimant (although it is acknowledged that he is not resident in Northern Ireland) is a British citizen who at the time of his dismissal was carrying out work solely for the benefit of and purposes of a business in Northern Ireland. It was submitted on behalf of the claimant that it is clear that the employment relationship is overwhelmingly stronger with Northern Ireland than with Jamaica as he had been posted to Jamaica for a relatively short period of his employment contract and had been previously posted to carry out work in different locations throughout the world for the Northern Ireland business, moving from contract to contract by the respondent.

RELEVANT LAW

25. Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 provides that "an employee has the right not to be unfairly dismissed by his employer."
26. The tribunal was referred to the following legal authorities by the parties, namely Lawson v Serco & Others 2006 IRLR 289 HL; Williams v University of Nottingham (2007) IRLR 666; Burke v the British Council; ADT Fire and Security PLC v Speyer and Cameron v Navy, Army and Air Force Institutes (NAAF) UKEAT/0125/06/DA & 0126/06/DA &0124/06/DA 14 December 2006.
27. In the Serco cases, the House of Lords held that the right under s.94(1) of the Employment Rights Act 1996 not to be unfairly dismissed is subject to a territorial limitation in that it generally applies only to an employee who is working in Great Britain at the time of his or her dismissal. What was contemplated at the time the contract was made and the prior history of the contractual relationship may be relevant to whether the employee is really working in Great Britain or whether he is merely on a casual visit, but ordinarily the question should simply be whether he is working in Great Britain at the time that he is dismissed. S.94 applies to peripatetic employees who are based in Great Britain even though they may spend periods working overseas.
28. As a general proposition expatriate employees who work and are based abroad are very unlikely to be within the scope of s.94(1). Lord Hoffman said at paragraph 37 of his judgment, "First, I think it would be very unlikely that someone working abroad would be within the scope of s.94(1) unless he was working for an employer based in Great Britain. But that would not be enough. Many companies based in Great Britain also carry on business in other countries and employment in those businesses will not attract British law merely on account of British ownership. The fact that the employee also happens to be British or even that he is recruited in Britain, so that the relationship is "rooted and forged" in this country should not in itself be sufficient to take the case out of the general rule that the place of employment is decisive. Something more is necessary."
29. Lord Hoffman then went on to give two examples of situations where "something more" was present: the employee posted abroad to work for a business conducted in Britain and the employee working in a political or social British enclave abroad. Lord Hoffman could not think of any other examples but did not rule out a residual category of cases where the claimant can demonstrate that they "have equally strong connections with Great Britain and British employment law."
30. The equivalent provision of s.94(1) in Northern Ireland is Article 126(1) of the Employment Rights (Northern Ireland) Order 1996. The tribunal considered that in applying the principles in the Serco cases to the facts of the present case, any references to "Britain and British" should be substituted by "Northern Ireland and Northern Irish."

CONCLUSIONS:

Which company employed the claimant?

31. The chairman had to decide this question on the basis of the available evidence in the context of the respondent's application to amend the response on the basis that it was not the employer. The chairman would have expected a "paper trail" to support the respondent's contention that the claimant was employed by Lagan Caribbean Limited. Nowhere is the claimant's employer ever stated to be Lagan Caribbean Limited or any other company for that matter. For example there was no documentary evidence available to support the respondent's contention that it was reimbursed the claimant's wages by Lagan Caribbean Limited.
32. The chairman is of the view that the available documentary evidence pointed to the respondent as being the claimant's employer. Mr Coll BL in his closing submissions conceded that the weight of the documentary evidence is against the respondent on this issue. The chairman views with scepticism the assertion by the respondent that the first time that this issue came to the mind of its witnesses was approximately a week before the Pre-Hearing Review. It is clear that the issue of which company employed the claimant was addressed by Mr Loughran and Ms Howard prior to the claimant's dismissal during the discussion referred to in the email of 1^st March 2007.
33. Therefore on a balance of probabilities and on the basis of the available evidence the tribunal is satisfied that the respondent was the claimant's employer at the time of his dismissal.

Does the tribunal have jurisdiction to entertain the claimant's complaint given the territorial jurisdiction of the Employment Rights (Northern Ireland) Order 1996?

34. The chairman considers that the history of the employment relationship between the claimant and the respondent was highly relevant to this issue. The claimant's contention that he had been recruited while he was living in Newcastle is central to the claimant's argument that he was posted by the respondent to Jamaica and other locations to work on different contracts and that he was posted abroad to carry out the business of the respondent. However it has been found as a fact that the claimant in this case was not recruited in Northern Ireland or indeed Newcastle and thus the submission that the relationship between the claimant and the respondent was "rooted and forged" in Northern Ireland has no basis. It was not disputed between the parties that the claimant has never been resident in and has never worked for the respondent in Northern Ireland or indeed elsewhere in the UK.
35. The chairman is satisfied that the claimant in this case does not fall into the peripatetic employee category because it cannot be said that he had a base in Northern Ireland from which he could be regarded as ordinarily working.
36. The chairman concludes that the claimant fell into the category of an expatriate employee. Clearly the claimant was not in the position of either Mr Lawson or Mr Botham in the Serco cases, both of whom had been recruited in the United Kingdom to work in a political or social enclave abroad. Further the chairman does not consider that the claimant was posted abroad by the respondent for the purposes of a business carried out by it in Northern Ireland. The chairman is not satisfied that the claimant was not, in the words of Lord Hoffman, "working for a business conducted in a foreign country which belongs to (Northern Irish) owners or is a branch of a (Northern Irish) business, but as a representative of a business conducted at home. The chairman does not consider that the claimant's position is analogous with the example of a foreign correspondent on the staff of a British newspaper. The chairman therefore went on to consider whether the claimant falls within the residual category.
37. No guidance is given by the House of Lords on the elusive "something more" in the residual category. The bare fact that the respondent is a Northern Irish company carrying out contracts abroad in its own name and that the claimant was employed by the respondent does not in the view of the chairman confer territorial jurisdiction. The fact that he was paid by the respondent directly to his bank account in El Salvador or that he was paid redundancy pay calculated in accordance with UK law, in the view of the chairman, does not prove that the claimant had stronger employment ties with Northern Ireland. There are other contrary indications such as the fact that the claimant was not required to pay tax and national insurance contributions. On the facts of the present case the claimant did not identify any factor that would in this case amount to "something more" and holds that the claimant has not shown that he has sufficiently strong employment connections with Northern Ireland.
38. Accordingly the chairman is satisfied that the tribunal does not have territorial jurisdiction to entertain the claimant's complaint of unfair dismissal and dismisses his claim of unfair dismissal.

Chairman:

Date and place of hearing: 9 October 2007, Belfast

Date decision recorded in register and issued to parties: