United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	Mr I D Truscott, Queen's Counsel Instructed by- Messrs Eversheds Solicitors Central Square South Orchard Street NEWCASTLE UPON TYNE NE1 3XX
For the Respondent	Mr G Allan, Queen's Counsel Instructed by- Messrs Irwin Mitchell Solicitors 150 Holborn LONDON EC1N 2NS


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employer from a decision of the Employment Tribunal sitting in Edinburgh, to the effect that the Employment Tribunal in Scotland had jurisdiction to hear the applicant's complaints regarding disability discrimination, deduction from wages, working time regulations, unfair dismissal and breach of contract.
2. The factual background is that the respondent employee was employed as a Medical Director of the Prescription Pricing Authority. For the purposes of this appeal, Clause 4 of his contract was in the following terms:-

"Place of work

4. The Employee's normal place of work will be at Bridge House, Newcastle. However, the Authority reserves the right to vary the Employee's normal place of work which may be at any other place of business of the Authority as the Authority requires provided that the Authority shall not vary the Employee's normal place of work without first giving the Employee reasonable notice of such variation. The Employee may also be required to travel within the UK in order to comply with his/her duties as a senior manager."

3. The issue of jurisdiction, as far as the Scottish Tribunal is concerned, is focussed by the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 which provides by Regulation 11 the following:-

"(5) The Rules contained in Schedules 1, 2 and 3 shall apply in proceedings to which they relate where-

(a) …

(b) The proceedings relate to a contract of employment, the place of execution or performance of which is in Scotland."

4. Against that background the decision of the Employment Tribunal is as follows:-

"Decision

In our view the matter can be relatively straightforwardly determined by considering whether the contract of the applicant was executed in Scotland or whether the place of its performance was Scotland.

Although the word "execution" in Regulation 11(5)(b) might be regarded as synonymous with "performance" the parties approached the case on the basis that "execution" in Regulation 11(5)(b) was not used in such a way but in the sense of authentication or signature and the Tribunal has approached that part of the case on that basis. Having regard to our findings in fact regarding the whereabouts of the applicant between the 6 and 10 October 1998 there can be no doubt that the contract was not executed in Scotland. We reject the applicant's submission that the evidence in this regard was inconclusive. On that basis therefore the applicant is not be able to satisfy Regulation 11(5)(b) in that the contract was clearly not executed in Scotland.

While we accept Mr Trustcott's submission that the decisions of the European Court of Justice regarding the meaning being ascribed to Article 5(1) of the Brussels Convention are instructive we share his view that they are no more than persuasive regarding the meaning to be given to Regulation 11. We also entertain some doubts as to whether it is appropriate to apply a Convention designed to deal with separate jurisdictions or different contracting states to the issue of whether a complaint is competently presented in the Employment Tribunal by registering it in either Scotland or England. We prefer the guidance contained Odeco in which the EAT has stated that

"[T]he first thing to be said is that in relation to the jurisdiction of the (Employment) Tribunals there is no question of any geographical distinction between the two countries. We are not in this field in the problem of two distinct systems of law and the courts of one country having no jurisdiction in the other. The statutes which establish the (Employment) Tribunals and gave them jurisdiction apply equally in England and in Scotland. There is no jurisdictional distinction between an (Employment) Tribunal sitting in Scotland and an (Employment) Tribunal sitting in England. This appeal tribunal can, and does, sit indifferently in England and in Scotland exercising the identical jurisdiction. Therefore the division which produces the problem in this case is not a true jurisdictional division at all; it is simply a division of the administrative structure into English and Scottish for administrative convenience."

In Odeco the EAT further questioned whether recondite points of law about the residence of foreign corporations should be canvassed in order to determine whether a case should be heard in Scotland or in England. Although this particular matter is of no relevance here it underlines the view of the EAT that in determining whether a Tribunal has "jurisdiction" to hear a complaint is to be determined in a non technical way where possible.

In our view it is clear from the evidence that while most of the applicant's work was carried out in England the respondents did not seek to argue that the applicant's contract was not to any extent carried out in Scotland. We would not be inclined to regard the preparation work which might have been done in the applicant's home prior to a business meeting the following day or the following week as performance of the contract. The evidence did not support a conclusion that that was work activity that the applicant could be required to do by his employers. Similarly the work which the applicant undoubtedly did undertake during his period of incapacity we would regard as being exceptional and again not activities that the applicant could have been compelled to undertake by his employers.

On the other hand there is no doubt that occasionally the applicant did perform work in Scotland as part of his contractual duties to his employers. It may have been only an occasional trip to Scotland to perform a lecture or address a conference but it is undoubtedly the case that these tasks were undertaken in Scotland as part of the applicant's contractual responsibilities to his employers. In that respect the applicant was undoubtedly performing his contract. In our view even the occasional performance of contractual duties in Scotland results in the application of the rules contained in Schedules 1, 2 and 3 of the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001. If, as was submitted by Mr Truscott, the matter was to be determined by whether an applicant "habitually" performed his contract in one country or another considerable and detailed evidence would be required in order to decide whether an application be dealt with according to the rules in the Scottish Regulations or the English Regulations, or, as Mr Truscott put it, whether the Employment Tribunal in Scotland or England had territorial jurisdiction. In light of the fact that there are no substantial differences between the Regulations and Rules which apply in Scotland and in England we would find it difficult to accept that it was the intention of Parliament that such a detailed investigation be made before it could be decided whether a complaint should be dealt with according to the Scottish Rules or the substantially identical English Rules. There are no doubt many employees who perform their contractual duties in both Scotland and England and if the respondents' submission was accepted in order to determine whether a Tribunal in England or Scotland would have "jurisdiction" such cases would require to be preceded by hearing evidence to determine whether an applicant (or a respondent) habitually performed the contract in Scotland or England or, in slightly different terminology, where was the principal or main place of performance.

As indicated earlier the parties had approached Regulation 11(5)(b) on the basis that "execution" is akin to authentication or signature. If Mr Truscott's submission - that in Regulation 11(5)(b) "performance" meant habitual performance - were accepted it, would mean that a contract which was never performed in Scotland but was signed by one of the parties there would give a Scottish tribunal "jurisdiction". That might seem odd. On the other hand if, as we hold, Regulation 11(5)(b) merely requires some performance in Scotland, that would be consistent with the approach adopted by the parties to the meaning of "execution".

Mr Truscott also argued that the Tribunal should have no regard to anything other than Clause 4 of the applicant's contract for the purpose of determining its place of performance. However in our view Clause 4 deals with the applicant's normal place of work. On the other hand Regulation 11(5)(b) is concerned with the place of the performance of the contract. There is no inconsistency between the applicant having as his normal place of work Bridge House, Newcastle and nevertheless performing some of his contractual obligations in another place for example in Scotland. While it was never suggested that the respondents had formally varied the employees' normal place of work as they were undoubtedly entitled to do under Clause 4, the applicant by virtue of the final sentence of that Clause could also be required to travel within the UK in order to comply with his duties as Medical Director. It was never suggested that when the applicant travelled to Scotland on PPA business he was not doing so as a result of a requirement that he did so as Medical Director employed by the respondents. Accordingly even if we were restricted to considering Clause 4 of the applicant's contract it is perfectly clear from that the duties he performed in Scotland were duties he could be required to, and did, perform by virtue of his contractual obligations.

We have therefore come to the conclusion that the application in this case can proceed before an Employment Tribunal sitting in Scotland applying the Rules set out in the Schedules to the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 because even leaving aside the preparation he undertook while at home in Scotland at the weekend and during his period of illness the applicant did as required by the respondents occasionally travel to Scotland and carry out lectures and hold meetings there; when doing so he was performing his contract with the respondents.

That is sufficient to dispose of the matter before the Tribunal today but we are conscious of the fact that this case has raised an important issue namely whether it is correct to regard Tribunals in Scotland as having "jurisdiction" only over those cases to which the Rules in the Schedules to the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 apply. Alternatively is it the case that any Tribunal sitting in England or Scotland can deal with a complaint which falls within the statutory powers of an Employment Tribunal provided it applies the appropriate Rules as required by Regulation 11(5)?

There was some discussion of Rule 21 (Transfer of Proceedings) and while we note Rule 21 contains a wide discretion regarding the transfer of proceedings between Scotland and England it can only apply where the Rules already apply – in this case - by virtue of Regulation 11(5)(b). It cannot be used to side-step Regulation11 (5)(b) However the application of Rule 21 is reserved for the President or Regional Chairman of Tribunals."

5. Mr Truscott, Q.C., appearing for the appellants, argued that the Tribunal had misdirected itself as a matter of law, inasmuch that it should have determined, against the construction of Rule 11(5)(b), that the issue fell to be determined as to whether or not Scotland was the substantial place of performance. He sought comfort from certain decisions of the European Court as regards competing jurisdictions within the EU, namely, Mulox IBC Ltd v Geels [1994] IRLR 422, Rutten v Cross Medical Ltd [1997] IRLR 249 and Weber v Universal Ogden Services Ltd [2002] IRLR 365. All these cases sought to introduce a notion of "habitual" with regard to the working place for the purposes of jurisdiction.
6. Mr Allan, appearing for the respondent employee before us, simply argued that the terms of Clause 4 of the contract contemplated performance to some extent in Scotland and that was sufficient. It was not appropriate, he submitted, to insert any form of additional wording into Regulation 11 (5)(b).
7. We should observe at once that this issue is essentially a question of fact to be determined upon the evidence with regard to determining place of performance of a contract. In our view, there is no scope for inserting any form of words into Regulation 11 (5)(b), particularly "substantial" or alternatively "exclusive". Neither seem to us to be necessary. All that is required upon the evidence, in our view, is that there is a connection with Scotland with regard to the performing of the contract.
8. This is clearly the case in the present case as the Tribunal have so found and we do not consider that they have misdirected themselves to the extent that we can interfere with that decision.
9. For this simple reason this appeal will be dismissed.