Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 301/16

 

 

 

CLAIMANT: Dr Mary Sheridan

 

 

RESPONDENTS: 1. Pi Healthcare Ltd

2. Johanna Jarvis

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is as follows:-

 

(i) The second-named respondent, Johanna Jarvis, is dismissed as a party to the proceedings, by consent.

 

(ii) The tribunal has jurisdiction to determine the claimant's claim.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Buchanan

 

Appearances:

The claimant appeared in person and was not represented.

The respondents were represented by Mr D Deeney, Consultant, of Norrie, Waite & Slater, Solicitors.

 

1 At the outset of the proceedings, Johanna Jarvis was dismissed as a respondent, by consent. This is an unfair dismissal claim, and she is not therefore properly a party to the proceedings.

 

2(i) The claimant lodged her claim in the Office of the Tribunals on 20 January 2016. Essentially, she is claiming unfair selection for redundancy, and alleges that the redundancy was a sham. It is clear from the claim form and the response that there is also a dispute between the claimant and the respondent company in respect of some of the terms on which she was employed.

 

(ii) The claimant was employed by the respondent company, a consultancy business in the pharmaceutical industry, as Director of Communications, on 4 August 2014 until the termination of her employment on 16 November 2015.

 

(iii) In their response the respondent company contended that a tribunal in Northern Ireland did not have the territorial jurisdiction to hear the claimant's claim and that her claim 'should fall under the jurisdiction of the UK tribunal offices'. What they mean here is that the case should be heard by a tribunal in Great Britain, and to be more precise, one sitting in the jurisdiction of England and Wales.

 

(iv) At a Case Management Discussion, before another Judge, the respondent company requested a pre-hearing review on the jurisdictional point. This request was acceded to and the matter was listed for a determination of the following issue:-

 

"Whether the tribunal has jurisdiction to deal with the claimant's claim of unfair dismissal, or whether the claim should more properly have been brought in England and Wales, on the basis that the respondents reside or carry on business in England and Wales or that the acts or omissions complained of by the claimant took place in England and Wales?"

 

(v) At the Case Management Discussion the respondents' representative on that occasion assured Employment Judge McCaffrey that the evidence in relation to the jurisdictional issue was separate from the other main issues in the case and consequently I do not deal with the matters set out in sub-paragraph (i) above.

 

(vi) The issue to be determined is, of course, not affected by the dismissal of the second-named respondent from these proceedings.

 

3 The matter before me proceeded principally on the basis of the written and oral submissions of the parties, and I am indebted to both the claimant and the respondents' representative for their helpful submissions. The claimant was, however, also sworn to give oral evidence and was asked some brief questions by the respondents' representative to clarify some points in the factual part of her submissions.

 

4 I now find the facts set out in the following paragraphs proved to my satisfaction on the balance of probabilities:-

 

(i) As stated above, the claimant's employment with the respondent company started on 4 August 2014.

 

(ii) Her contract of employment, while it did not contain an exclusive jurisdiction clause, made reference to legislation which applied in Great Britain (albeit there is identical legislation of the same name and year in Northern Ireland, eg Employment Rights Act 1996 and corresponding Northern Ireland Order) and to legislation such as the Equality Act 2010 which as yet has no exact counterpart in this jurisdiction.

 

(iii) The statement of her main terms and conditions of employment stated her place of employment as her then home address in Berkshire but did go on to state:-

 

"[H]owever you may from time to time be required to undertake work at additional or other addresses as deemed necessary to meet the needs of the business."

 

(iv) The claimant describes the company as being based predominantly on a remote workforce, with no offices to accommodate its staff. The respondent describes itself as 'a small company with four employees in different parts of England who work regularly from home'.

 

(v) Meetings to discuss company business took place in Leeds, in a room hired for that day. The company had no offices or business premises in Northern Ireland, though this accords to the position in England where the registered office was someone's home address.

 

5(i) On 31 July 2015 the claimant moved house to Strangford, County Down. The claimant had told the respondent company of her proposed move in late February of that year. There does not appear to have been any discussion of the work implications of that move, though the claimant kept the respondent informed of the timeframe and so forth relating to it.

 

(ii) The respondent certainly did not object to the move and the claimant continued to work for them as a home worker in Northern Ireland until her employment ended on 16 November 2015.

 

(iii) At the time of her move to Northern Ireland no changes were made to her contract of employment, nor were any made subsequently.

 

6(i) The claimant continued to work for the company on much the same basis as she had done in England. Based in Northern Ireland she conducted all company business with clients from her home. That was where she habitually and ordinarily worked, albeit that she was implementing and carrying on that work on the basis of strategic decisions which were made in England.

 

(ii) On a day-to-day basis she communicated with colleagues by phone, e-mail and Skype.

 

She travelled to Leeds for meetings, though she spent as much time travelling abroad on company business as she did travelling to Leeds. When she travelled abroad, her expenses were paid from her home in Northern Ireland, not from a point on the UK mainland. Routine day-to-day expenses incurred by her at her home in Northern Ireland, eg stationery, phone bills, broadband, were met by the company.

 

(iii) Although the respondent company had many international clients based abroad, it did have one major client in Northern Ireland. The claimant had attended a meeting in Craigavon with that client. However, that meeting had taken place at a time when she was living in England, and she was not generally responsible for looking after its affairs. It is fair to assume that the respondent company, like any other business, would have wanted to increase its role in Northern Ireland and that in this sense it was of potential advantage to it to have the claimant working from home in Northern Ireland so that she could play a role in bringing in new business.

 

7(i) Notwithstanding the development of more flexible and family-friendly working patterns the claimant, as a home worker, can still probably be said to be an atypical worker. When I asked the claimant and the respondents' representative if they were able to refer me to any case law dealing with jurisdictional issues in home worker cases, the respondents' representative, most fairly it has to be said, stated that his extensive research had revealed a suggestion that in a case such as this, the safest thing to do was to bring a claim in both the relevant jurisdictions. Unhappily, this suggestion does not provide me with an answer.

 

(ii) Prior to 1999, the right not to be unfairly dismissed did not apply to employment where under the employee's contract of employment he or she ordinarily worked outside Northern Ireland. ( See : Employment Rights (Northern Ireland) Order 1996, Article 126 and Article 239(2) and (3)(g).) However, the Employment Relations (Northern Ireland) Order 1999, Article 31, substituted a new Article 239 in the 1996 Order which had the effect of removing references to the territorial scope of the law of unfair dismissal.

 

(iii) While the irony here is that under the previous law, the claimant would arguably have been able to show that a tribunal in Northern Ireland had jurisdiction to hear her claim, what I must consider is the law as it is now following the enactment of the 1999 Order.

 

(iv) The leading cases on the territorial scope of employment law, including unfair dismissal, are:-

 

Lawson v Serco Ltd ; Botham v Ministry of Defence; Crofts v Veta Ltd [2006] IRLR 289 HL; and Ravat v Halliburton Manufacturing and Services Ltd [2012] IRLR 315 SC

 

It must be remembered, however, that these and subsequent cases concern people working outside the United Kingdom. Some of the subsequent cases have developed, in a somewhat piecemeal fashion, the law relating to 'special' cases such as peripatetic workers (pilots and cabin crew in Todd v British Midland Airways Ltd), expatriate employees such as British teachers paid by the UK government, but working in European schools ( Duncombe v Secretary of State for Children Schools and Families [2011] IRLR 840 SC) and workers posted abroad or working in British enclaves (an example of the latter would be civilian workers attached to HM Forces working in the Sovereign Base Areas of Cyprus). Consequently, these cases are of limited assistance.

 

(v) However, in what has been termed the 'paradigm' case of the employee who was working in Northern Ireland or Great Britain, as the case may be, the position has to be assessed at the time of dismissal and what the parties intended as the place of work at the time the contract was entered into is less relevant.

 

8 In the instant case, the claimant was working in Northern Ireland at the time of her dismissal. Northern Ireland was her work base, and barring attendance at team meetings in Leeds, or business trips abroad, she spent the remainder of her time working in Northern Ireland on her employer's business.

 

In any event, I am satisfied from the evidence that the employer did, in fact, carry on business in Northern Ireland.

 

Overall I am satisfied that the claimant's employment with the respondent company had a substantial and sufficiently strong connexion with Northern Ireland to give a tribunal here jurisdiction to hear her claim.

 

As a matter of common sense, it is clearly more convenient for the claimant to bring proceedings in Northern Ireland, but I wish to emphasise that this factor has played no part in my decision. Nor has the fact that a tribunal in England could not hear her claim because she does not possess the two years' continuous employment which is now required in Great Britain to bring an unfair dismissal claim.

 

9 The matter will now be listed for full hearing on the merits. I would again take this opportunity to apologise to the parties for the delay in issuing this decision. The reason for that delay has previously been explained in correspondence to them.

 

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 27 April 2016, Belfast

 

 

Date decision recorded in register and issued to parties: