Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/1130_11IT.html
Cite as: [2011] NIIT 1130_11IT, [2011] NIIT 01130_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1130/11

CLAIMANT: Patrick McColgan

RESPONDENT: James McMahon Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal does not have the necessary territorial jurisdiction to consider and determine the claimant’s claim of unfair dismissal under the Employment Rights (Northern Ireland) Order 1996. The claimant’s claim of unfair dismissal is therefore dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Ms R Best, Barrister-at-Law, instructed by McGrigors, Solicitors.

Reasons

1.1 The claimant presented a claim of unfair dismissal to the tribunal on 11 May 2011 arising out of his dismissal by the respondent on 5 March 2011. The respondent presented a response to the tribunal on 2 June 2011, in which it denied liability for the claimant’s claim. Following an application by the respondent, it was agreed that a pre-hearing review would be held in this matter to consider the following issue:-

“Whether the tribunal has the necessary territorial jurisdiction to consider and determine the claimant’s claim of unfair dismissal under the Employment Rights (Northern Ireland) Order 1996.”

2. Having heard oral evidence from the claimant and Mr T Delaney, the respondent’s Human Resources & Safety Manager, I made the following findings of fact, insofar as relevant and material to the issues, the subject-matter of the pre-hearing review:-

(a) The claimant was employed by the respondent from 25 September 2009 to 5 March 2011, as Assistant Manager of the respondent’s branch in Letterkenny, Co Donegal.

(b) At all times during the course of his said employment, but in particular at the date of his said dismissal, the claimant was working for the respondent in the above capacity at the respondent’s branch in Letterkenny, Co Donegal.

(c) The respondent is a company registered in the Republic of Ireland, which operates as a builders merchant with a number of branches in the Republic of Ireland, including a branch in Letterkenny in the Republic of Ireland. The respondent also has a subsidiary company, Robert Keys & Company Limited, which is registered in Northern Ireland and uses, for branding purposes, the trading name of James McMahon Limited and/or James McMahon; and which company has a number of branches in Northern Ireland. At no time, during the course of the above period of employment, was the claimant employed by Robert Keys & Company Limited; and, during this period, he never worked in any branch in Northern Ireland. The claimant lives at an address in Londonderry in Northern Ireland. At the commencement of his employment with the respondent at the Letterkenny Branch on 25 September 2009, the claimant negotiated with the Chief Executive Officer of James McMahon Limited that he would be paid in Sterling and he would also pay National Insurance Contributions in Northern Ireland. As part of this agreement, his salary was paid into his Northern Ireland bank account, by means of a credit transfer by Robert Keys & Company Limited. There was a dispute, in the course of this hearing, what was the purpose of this arrangement and/or at whose instigation the arrangement was made. In particular, it was disputed whether the arrangement was made for personal reasons to facilitate the personal circumstances of the claimant living in Northern Ireland, as stated by Mr Delaney; or, as stated by the claimant was done in the expectation that the claimant would be able to begin work in the Derry Branch, where he had previously worked, at some time in the future. In the event, in light of my decision, in this matter, it was not necessary for me to resolve this dispute. Even if the reason for the arrangement was the reason stated by the claimant, it was not disputed that he never worked in the Derry Branch during the said period of employment from 25 September 2009 to 5 March 2011. I was informed by the claimant, during the course of his evidence, that the claimant’s line manager in the Letterkenny Branch, who also lives in Northern Ireland, was also paid in a similar way to the claimant by the respondent.

3. Article 239 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) originally provided that the tribunal’s jurisdiction in relation to claims of unfair dismissal under the 1996 Order did not apply to employment where under his contract of employment an employee ordinarily worked outside Northern Ireland. Article 239 of the 1996 Order was repealed by the Employment Relations (Northern Ireland) Order 1999. In Great Britain, Section 196 of the Employment Rights Act 1996 (‘the 1996 Act’), which was in similar terms to that found in Article 239 of the 1996 Order, was repealed by the Employment Relations Act 1999.

In the well-known decision of the House of Lords in the case of Lawson v Serco Ltd [2006] UKHL 3, Lord Hoffman, in the course of his opinion, set out the circumstances in which the right not to be fairly dismissed under the 1996 Act in Great Britain, (which as stated above is in similar terms to the 1996 Order on this issue), applied, following the above repeal, and, in particular, the relevant territorial restrictions, if any, on the jurisdiction of the tribunal to consider and determine any such claim. Since the repeal of Article 239 of the 1996 Order, the provisions in the 1996 Order which grant employees the right not to be unfairly dismissed no longer contain any geographical limitation. However, as set out in the judgment of the House of Lords in the Lawson case, Lord Hoffman, with whom all the other members of the Judicial Committee agreed, was satisfied that the right to bring a claim of unfair dismissal could not apply to all employees, regardless of where in the world they worked. The decision in the Lawson case is clearly binding on this tribunal. Further, he emphasised that this was a question of law and that it was a matter of applying the principle rather than inventing a rule. In his opinion, Lord Hoffman, applying the similar provision under the 1996 Act, held that the ‘standard, normal or paradigm case’ was an employee working in [Northern Ireland] at the time of the dismissal. He also was satisfied that the right to claim unfair dismissal also covered ‘peripatetic employees’ who might spend much of their time outside [Northern Ireland] but were nevertheless based in [Northern Ireland]. He further referred to a further category of employees, namely ‘expatriate employees’, who worked or were based abroad and in certain circumstances might be held to be entitled to bring a claim in [Northern Ireland] where, for example, ‘despite the workplace being abroad, there were other relevant factors so powerful that the employment relationship had a closer connection with [Northern Ireland] than with a foreign country where the employee worked’. A further example given by Lord Hoffman was an employee working ‘within what amounts for practical purposes to an extra territorial enclave [Northern Ireland] in a foreign country’. As recognised in the recent judgment given by Lady Hale, in Duncombe & Others v Secretary of State for Children, Schools and Families [2011] UKSC 36, where the guidance by Lord Hoffman was approved; there may be further examples of ‘expatriate employees’ who may still be able, in certain circumstances, to bring such claims of unfair dismissal. In any event, it is clear, on the facts as found by me, as set out above, that this is not a case of an ‘expatriate employee’, and/or a ‘peripatetic employee’ as defined in the guidance of Lord Hoffman in the Lawson v Serco case. Even if he could be said to be a ‘peripatetic employee’, which I do not accept, it is clear he was not based in Northern Ireland; but rather he was based, at all material times, in the branch in Letterkenny in the Republic of Ireland. Pursuant to the opinion of Lord Hoffman the ‘standard, normal or paradigm case’ where a claimant may bring a claim of unfair dismissal pursuant to the 1996 Order in the tribunals in Northern Ireland, required him to show that he was an employee working in Northern Ireland at the time of his dismissal. The claimant at no time during his said period of employment with the respondent, the subject-matter of this claim, was employed to work in Northern Ireland by the respondent. Rather, at all times material to this claim, he was employed by the respondent to work at the Letterkenny Branch of the respondent.

4. In the circumstances, the tribunal does not have the necessary territorial jurisdiction to consider and determine the claimant’s claim of unfair dismissal under the 1996 Order and the claimant’s claim must therefore be dismissed.

Chairman:

Date and place of hearing: 18 August 2011, Belfast

Date decision recorded in register and issued to parties: