Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/01107_10IT.html
Cite as: [2010] NIIT 1107_10IT, [2010] NIIT 01107_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1107/10 and 1152/10

CLAIMANT: Harry Harrison

RESPONDENT: Randox Laboratories Ltd

DECISION ON A PRE-HEARING REVIEW (JOINDER)

I have decided to join Randox Laboratories India Pvt. Ltd as a respondent to these proceedings, subject to the entitlement of the new respondent to apply for the joinder order to be revoked.

Constitution of Tribunal:

Chairman (sitting alone): Mr Paul Buggy

Appearances:

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by Harrison Solicitors.

The respondent was represented by Mr J Algazy, instructed by Elaine Torrens, Solicitor.

REASONS

1. Randox Laboratories Ltd (“the current respondent”) and Randox India Pvt. Ltd (“the Indian company”) are both companies within the Randox Group of companies. The Indian company is a wholly owned subsidiary of the current respondent. Dr S P Fitzgerald is the Managing Director of the current respondent and he is also the Managing Director of the Indian company. Dr Fitzgerald owns nearly all of the shares in the current respondent.

2. The claimant was employed within the Randox group of companies from 1 January 2009 until mid-January 2010.

3. According to the current respondent, the claimant was employed by that company until 31 May 2009 and he then moved to the employment of the Indian company, with effect from 1 June 2009.

4. In mid-January 2010, the Indian company purported to dismiss the claimant. In these proceedings, the claimant claims unfair dismissal in relation to that dismissal.

5. The claimant has applied for the joinder of the Indian company as a respondent to the unfair dismissal proceedings. That joinder is opposed by the current respondent, on the basis of a combination of the following propositions. First, the joinder of an additional respondent will add to the expense of the current respondent in defending the proceedings. Secondly, any claim for unfair dismissal against the Indian company is doomed to failure. Thirdly, accordingly, I should exercise my discretion against joining the Indian company, so as to avoid the current respondent being put to unnecessary additional expense.

6. Under Rule 10(1) of the Industrial [Tribunals] Rules of Procedure, I have power to join any company:

“… who the chairman … considers may be liable for the remedy claimed … “.

7. Accordingly, the real issue in the context of this joinder application was whether the Indian company is an entity which I consider may be liable for the remedies claimed in the unfair dismissal claim.

8. I note the word “may” in the extract from rule 10 which I have quoted above. There is no requirement for me to be satisfied that the new respondent will probably be liable, or even that it must appear to me that the new respondent is likely to be liable: Instead, I only have to “consider” that it “may” be liable; that is the only relevant precondition to the exercise of my joinder discretion.

9. I have decided to join the Indian company (subject to that company’s entitlement to apply for the revocation of that joinder). I have done so against the following background and for the following reasons. (1) I consider that the Indian company may be liable for the remedies claimed in the unfair dismissal claim. On the basis of the very limited evidence currently available to me, I am not convinced that jurisdictional barriers, would prevent such an unfair dismissal claim (against the Indian company from having better than little reasonable prospect of success.

10. In deciding to join the Indian company, I have not concluded that they are more likely than not to be liable for any unfair dismissal remedy. I have simply decided that they “may” be.

11. On behalf of the respondent, Mr Algazy says that any claim against the Indian company is doomed to failure because the claimant’s employment, within the Indian company, is outside the legislative grasp, or intendment of Northern Ireland’s unfair dismissal legislation. (See Lawson v Serco Ltd [2006] ICR 250, at paragraph 6 of the judgment).

12. On behalf of the claimant, Ms Bradley’s position is that the claimant asserts that he was, in any event, at the time of dismissal, employed by the current respondent (as distinct from being employed, by the Indian company). Alternatively, the claimant says, if he was employed by the Indian company at the time of dismissal, his dismissal by that employer, in light of the factual circumstances of this case, was well within the territorial grasp of Northern Ireland’s unfair dismissal legislation.

13. Mr Algazy has drawn my attention to EU Council Regulation 44/2001. According to Mr Algazy, in any EU Member State, that Regulation regulates jurisdiction, in respect of “foreign” civil matters, even if the “foreign” element relates to a country which is not a member of the EU.

14. Article 2 of those Regulations, provides as follows:

“1. Subject to this Regulation persons domiciled in a Member State shall, whatever their nationality be sued in the courts of that Member State.

2. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State”.

15. In view of the provisions of Article 2 of the Regulations, there seems to be a respectable argument for the proposition that, if the Indian company is domiciled in the United Kingdom, it can be sued, in respect of unfair dismissal, in some employment tribunal within the United Kingdom.

16. However, according to Mr Algazy, it is absolutely clear that the Indian company is not domiciled in Northern Ireland. For the claimant, Ms Bradley does not accept that contention.

17. Which party is correct on that matter? The proper answer to that question depends, to a large extent, on factual issues. Those factual issues can best be resolved in the course of a substantive hearing. It does not seem to me that it is appropriate for me to attempt to resolve them in the course of a joinder application. As matters stand, I simply do not know whether the Indian company is, or is not, as a matter of law and for the purposes of the 2001 regulations, to be regarded as being domiciled in Northern Ireland.

18. In arguing that the claimant had no chance of establishing that the Northern Ireland industrial tribunals had jurisdiction in respect of any claim of unfair dismissal on the part of the claimant, against the Indian company, Mr Algazy mainly relied upon the decision of the House of Lords in Serco.

19. He pointed out that the effect of Serco is to put an implied territorial limitation upon the application of the unfair dismissals legislation of Northern Ireland. I note that, at paragraph 1 of the judgement in Serco, the following observations are made:

“It is inconceivable that Parliament was intending to confer rights upon employees working in foreign countries and having no connection with Great Britain … Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) [of the GB Employment Rights Act 1996] the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair? The answer to this question will also determine the question of jurisdiction, since the employment tribunal will have jurisdiction to decide upon the unfairness of the dismissal if (but only if) section 94(1) is the appropriate choice of law”.

Obviously, in applying that dictum in the circumstances of this case, “Northern Ireland” has to be substituted for “Great Britain”, and Article 126 of the Employment Rights (Northern Ireland) Order 1996 is the appropriate legislation. (Article 126 is the Northern Ireland equivalent of section 94 of the Employment Rights Act 1996).

20. As is made clear at paragraph 27 of the Serco judgement, in determining whether or not a particular contract of employment, at the time of dismissal, is inside or outside the scope of the unfair dismissals legislation, the issue is whether the employee was working in Northern Ireland at the time of his dismissal, rather than being dependant upon what was contemplated (in respect of the employee’s workplace or workplaces) at the time when the relevant contract of employment was made.

21. Serco is also authority for the proposition that the standard (or normal or paradigm) case of the application of Article 126 is that the employee was working in Northern Ireland at the time of his dismissal. (See paragraph 27 of the judgment.) In my view, whether the claimant in the present proceedings was, or was not, working in Northern Ireland at the time of dismissal is a question of fact, and that factual issue can only be resolved through the adduction of oral evidence on each side of the case; it is an issue which cannot properly be determined in the course of a joinder application, and in the absence of oral testimony.

22. It can be argued that the claimant in this case was a peripatetic employee. If so, the principle set out at paragraph 29 of Serco appears to be applicable to him. It seems that this principle is that, for the purposes of the unfair dismissals legislation, the base of a peripatetic employee is to be treated as his place of employment; and his base is the place where he should be regarded as ordinarily working. Where was the claimant in this case “based”? In my view, the resolution of that question involves issues of fact, which can best be determined in the course of the main hearing, and which cannot appropriately be determined in the course of a joinder application.

23. In the context of the “base” issue, I note that in Serco itself, the House of Lords determined that Mr Cross was based in the United Kingdom, even though his employer was a foreign airline, and even though he spent most of his time outside Great Britain.

24. As Mr Algazy pointed out, at paragraph 36 of the Serco judgement, the following comment was made:

“The circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation”.

In the context of the present case, the implications of that observation is as follows: The circumstances would have to be unusual for a particular employee to fall within the scope of Northern Ireland’s unfair dismissal legislation, if (at the material time) he was not working in Northern Ireland and was not based here either. Against that background, I have arrived at no conclusions, even provisional conclusions, as to the likely prospects of success in the event of this claimant arguing that he comes within the “third category” of employees who, according to the Serco classification, are within the scope of Northern Ireland’s unfair dismissal legislation. (See paragraph 35-40 of Serco.)

25. I am not aware of any relevant case law which definitely establishes that one cannot be based both in Northern Ireland while also being based in another country (such as India).

26. However, case law does show that it is clearly arguable that one is based in the territory in which one ordinarily works at the relevant time. (See paragraph 29 of the Serco judgement).

27. I note that there is potentially a factual dispute between the parties on the question of whether or not the claimant spent most of his time in India during the period from June 2009 to January 2010, or whether, in practice, he spent most of his time in Northern Ireland. That factual dispute, to the extent that it is material to the determination of the jurisdictional issues, is best left for determination during the course of a main hearing, as distinct from being determined in the course of a joinder application.

28. I note that, according to the Statement of Main Terms of Employment which the current respondent issued to the claimant, in respect of his employment with the current respondent, the position, according to the current respondent, was as follows:

“Your normal place of work is split between [the Northern Ireland premises of the current respondent] and Randox India …”

I also note that the same Statement made the following provision:

“You will work abroad as required, initially 3 week India, 3 week UK on a rotational basis however this may be subject to change in keeping with operational needs …”

Chairman:

Date and place of hearing: 11 January 2011, Belfast

Date decision recorded in register and issued to parties:

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