United Kingdom Employment Appeal Tribunal

APPEARANCES

 

UKEAT/0164/03/DA For the Appellant	MR A STAFFORD (One of Her Majesty's Counsel) Instructed by: Messrs Withers LLP Solicitors 16 Old Bailey London EC4M 7EG
For the Respondent	MR McCLYMONT (Representative)
UKEAT/0367/03/DA For the Appellants	MR D GRIFFITH-JONES (One of Her Majesty's Counsel) and MISS J HEAL (of Counsel) Instructed by: Messrs Simpson Miller Solicitors (Incorporating A J Hows Solicitors) 165 The Broadway Wimbledon London SW19 1NE
For the Respondents	MR C JEANS (One of Her Majesty's Counsel) and MISS A PROOPS (of Counsel) Instructed by: Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL

APPEARANCES (Cont'd)

UKEAT/0368/03/DA For the Appellant	MR C JEANS (One of Her Majesty's Counsel) and MISS A PROOPS (of Counsel) Instructed by: Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL
For the Respondents	MR D GRIFFITH-JONES (One of Her Majesty's Counsel) and MISS J HEAL (of Counsel) Instructed by: Messrs Simpson Miller Solicitors (Incorporating A J Hows Solicitors) 165 The Broadway Wimbledon London SW19 1NE
UKEAT/0080/04/DA For the Appellant	MR T CROXFORD (of Counsel) Instructed by: Messrs DLA Solicitors 3 Noble Street London EC2V 7EE
For the First Respondent	MR J S CHEETHAM (of Counsel) Instructed by: Messrs Charles Platel & Partners Solicitors Guildgate House Shute End Wokingham RG40 1BJ

APPEARANCES (Cont'd)

UKEAT/0222/04/DA For the Appellant	MR J HAND (One of Her Majesty's Counsel) Instructed by: Messrs Simpson & Marwick Solicitors 48 Queen's Road Aberdeen AB15 4YE
For the Respondent	No Appearance or Representation By or on Behalf of the Respondent


 


SUMMARY

ET extra-territorial jurisdiction in (1) Employment Rights Act 1996 claims (employment in Great Britain) and (2) breach of contract claims – CPR Part 6 – forum non conveniens.


 


HIS HONOUR JUDGE PETER CLARK

1. We heard consecutively four cases with a common thread, that is the extent of the Employment Tribunal's extra-territorial jurisdiction under the Employment Rights Act 1996 (ERA), following the repeal of section 196 ERA and two of which also raised the issue of the Tribunal's jurisdiction in breach of contract claims under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (the 1994 Order). They are:

(1) Expro Gulf Ltd v Birnie (UKEAT/0222/04), an employer's appeal against the decision of the Newcastle upon Tyne Employment Tribunal (Chairman Mr C T Grazin), promulgated with Extended Written Reasons (EWR) on 24 October 2003, assuming jurisdiction to entertain the Applicant, Mr Birnie's claim of unfair dismissal. A claim of breach of contract by the Applicant was dismissed on withdrawal. That appeal is unopposed. We have also considered an application for permission to add a cross-appeal by the Applicant against the Tribunal's alleged failure to consider his application for transfer of the proceedings to the Scottish Tribunals.

(2) SSAFA Forces Help v McClymont (UKEAT/164/03), an employer's appeal against the decision of the London (South) Employment Tribunal (Chairman Ms J Wade), promulgated with EWR on 14 January 2003, assuming jurisdiction to entertain the Applicant, Mrs McClymont's complaint of constructive unfair dismissal.

(3) Sysdeco v Atkins (UKEAT/0080/04), an employer's appeal against the decision of the Reading Employment Tribunal (Chairman Mr R Griffiths), promulgated with EWR on 31 March 2003, assuming jurisdiction to entertain the Applicant, Miss Atkins' complaints of (a) unfair dismissal and (b) breach of contract against each of four named corporate Respondents.

(4) "The Pilots' Case", involving six pilots employed by Cathay Pacific Airways Ltd ("CPA"); five pilots employed by Veta Ltd ("Veta") and finally one pilot, Mr Parrock, employed by USA Basing Ltd ("USAB").

2. By a decision with EWR promulgated on 10 March 2003 the London (South) Employment Tribunal (Chairman Mr A M Snelson) held:

(i) that the Employment Tribunal had jurisdiction to entertain complaints brought under ERA by the five Veta pilots, but not those of the six CPA pilots, nor Mr Parrock.

(ii) that it had jurisdiction to entertain breaches of contract claims brought by the Veta pilots, but not that of Mr Parrock; and

(iii) that whilst it had jurisdiction to entertain breach of contract claims by the CPA pilots, it declined to hear those claims on forum non conveniens grounds and stayed them.

3. In appeals numbered UKEAT/0367/03 & UKEAT/0368/03:

(i) the CPA pilots appeal the finding that the Tribunal has no jurisdiction to entertain their ERA claims. That appeal is not pursued.

(ii) Veta appeals against the finding in respect of their pilots' ERA claims.

(iii) Veta similarly appeals the finding as to the breach of contract jurisdiction.

(iv) the CPA pilots appeal the stay of their breach of contract claims on forum non conveniens grounds.

(v) Mr Parrock appeals the Tribunal's refusal to accept jurisdiction for either of his claims.

The Facts

4. Expro had a registered office in Cyprus and the Company was domiciled there. It did not carry on business in England and Wales. The Applicant was domiciled in the UK; he lived in Scotland. On 13 November 1998 he entered into a written contract of employment with Expro, under which he agreed to work as a Senior Technician based in Nigeria. The contract contained both a jurisdiction clause and choice of law clause. It was common ground that at all relevant times he worked in Nigeria and not the UK until his dismissal on 12 February 2003. On 2 May 2003 he presented an Originating Application to the Newcastle Tribunal complaining of unfair dismissal and breach of contract.
5. SSAFA is a charity registered in the UK which, among other things, provides support services to overseas members of the armed forces. The Applicant responded to an advert for a psychiatric nurse to work in Germany. She was recruited to that post in the UK and worked wholly in Germany from October 1998 until her resignation in December 2001. During the employment she pursued a grievance, which was dealt with by SSAFA's Personnel Department based in the UK. She was paid her salary partly in sterling and partly in German marks. She paid UK National Insurance. Following her resignation she presented an Originating Application to the London (South) Tribunal on 11 March 2002, complaining of constructive (unfair) dismissal. The nature of her case was that she had been forced to resign as a result of treatment which she received at the hands of military personnel in Germany which led to her internal grievance. She alleged that the employer's failure to deal properly with her grievance led to a breakdown in mutual trust and confidence.
6. Miss Atkins was employed by Sysdeco Maprill SA ("SMAS"), at the time when that company went into liquidation on 7 March 2002. On 13 March 2002 SMAS was purchased from the receiver by a company which immediately re-registered as Sysdeco Konsberg AS ("SKAS"). The purchase was inclusive of all assets and liabilities. Consequently, her employment transferred from SMAS to SKAS.
7. SKAS is a Norwegian company domiciled in Norway. Miss Atkins was employed as General Manager of Sysdeco Ireland Ltd ("SIL") and Sysdeco Northern Ireland Ltd ("SNIL"), which companies had offices in Dublin and Belfast respectively. She had two homes; one in Wokingham, Surrey, the other a cottage in Carlingford, Ireland. She was permitted to work from home and attended meetings in both Southern and Northern Ireland. The Tribunal found that over an unspecified period she spent 123 working days in England (working from the Wokingham address) and 98 days in Ireland. Her employment ended on 25 July 2002. By an Originating Application presented to the London (Central) Tribunal on 3 October 2002 she complained of unfair dismissal, breach of contract and unpaid expenses.
8. The Pilots Cases. CPA, USAB and Veta are companies incorporated in Hong Kong, Veta and USAB being wholly owned subsidiaries of CPA. CPA has a branch office in the UK. The other companies did not. Historically CPA employed all aircrew working on its aircraft worldwide. In the early 1990s CPA formulated a "basings policy", leading to Agreement with the trade unions, designed to enable aircrew to live in and work from other parts of the world. Veta was set up in 1992 for Europe-based aircrew and USAB in 1999 for North American-based aircrew.
9. At all relevant times the six CPA Applicants (Mr Dickie and others) were based in Hong Kong. Their flight cycles commenced in Hong Kong. They were paid in Hong Kong dollars and taxed in Hong Kong. Their salaries, higher than the Veta and USAB pilots, reflected the high cost of living in Hong Kong. They lived there. The CPA pilots were employed under contracts governed by Hong Kong law, on expatriate terms more favourable than locally-employed pilots and subject to repatriation rights and benefits on termination. Their contracts were terminable by CPA on 3-months' notice or pay in lieu.
10. The five Veta pilots (Mr Crofts and others) were originally employed by CPA in Hong Kong, but later transferred under the basings policy to Veta so that at the time of their dismissal they were based in London. Under the Veta contracts, governed by Hong Kong law, they were required to operate any designated aircraft in any part of the world. Salaries were credited to the Hong Kong bank accounts of Veta aircrew and subject to local taxation there. Ordinarily they began their flying cycles at London Heathrow ("LHR") where CPA employed a base coordinator, whose duties were purely administrative and not managerial. Those duties included booking tickets and hotel accommodation and generally acting as a link between aircrew and CPA management in Hong Kong. Veta pilots normally called in at the Cathay Pacific Administration Centre in LHR to collect their flight instructions and associated documents. Sometimes the documents were delivered to the aircraft. If the flight cycle was to commence elsewhere, the pilot would be "positioned", that is, the base coordinator would arrange any necessary transport and hotel accommodation to allow the pilot to start his duty from another airport.
11. Mr Parrock was employed by Aircrew Services Ltd ("ASL"), a company incorporated in Hong Kong and part of the Swire Group, owners of CPA and its subsidiaries, from 1996 to 1999, flying Air Hong Kong aircraft. ("AHK"). AHK was a Hong Kong-based cargo carrier acquired by CPA in 1994. He became an employee of Veta in January 2000 and in August 2000 he resigned from that employment to take up employment with USAB. From 27 October 2000 his home base was New York, but from January 2000 he was resident in the UK. Like the other applicant pilots he was paid throughout and taxed in Hong Kong and his contract was subject to Hong Kong law. With USAB his flight cycles usually began in North America. He was responsible for his own travel costs from home to and from New York. Sometimes his flight cycle could be arranged so that he ended up at LHR, thus saving him travel expenses.
12. All the pilots were dismissed on 9 July 2001 and then presented originating applications to the London (South) Tribunal complaining of unfair dismissal and breach of contract.

ERA Jurisdiction

13. Section 196 (2) ERA provided that protection under the Act, including the right not to be unfairly dismissed, did not apply to employment where under the employee's contract of employment he ordinarily works outside Great Britain.
14. That jurisdictional limitation gave rise to difficult questions of construction; was the proper test the base or function test (see Todd v Midland Airways [1978] IRLR 370) or the contract test; Wilson v Maynard [1977] IRLR 491? The earlier cases were reviewed by Mantell LJ in Carver v Saudi Arabian Airlines [1999] IRLR 370. The Court of Appeal decided in that case that the contract test was correct; it required the court to consider the position as it appeared at the date of the contract, rather than what actually happened during the employment.
15. Section 196 ERA was repealed by section 32 (3) of the Employment Relations Act 1999 with effect from 25 October 1999. It therefore did not apply in any of the cases presently before us. How then was the question of extra-territorial jurisdiction to be determined, in the absence of any statutory replacement for section 196?
16. That question spawned a number of different answers. Was it to be found in the territorial limitation provision of section 244 (1) ERA; or the procedural requirement of regulation 11 (5) of the Employment Tribunal Rules of Procedure Regulations 2001 (see Lawson v Serco Ltd 11 March 2003. EAT/0018/02); or was it enough that the employment had a substantial connection with Great Britain (see Jackson v Ghost Ltd [2003] IRLR 824. EAT); or did the repeal of section 196 mean a return to the base test?
17. The matter has, for present purposes, been resolved at Court of Appeal level in Lawson v Serco Ltd [2004] IRLR 206. The relevant ERA protection applies to employment in Great Britain. All other tests were rejected.
18. In giving the judgment of the court in Serco, Pill LJ recognised that although the answer provided was straightforward, it may be difficult to apply in some cases (judgment para. 8). Some guidance as to how the test is to be applied to the facts of individual cases is to be found in paragraphs 27-28 of the judgment of Pill LJ. The location of the employee's base may throw some light on where the employment is; regard must be had to the Posting of Workers Directive (96/17/EC) ("PWD"). Dismissal during a single short absence from Great Britain would not normally exclude the protection of the ERA; the residence of the parties may be relevant to where the employment is, but the emphasis must be upon the employment itself. In most cases, considered the court, it will not be difficult to decide whether the employment is in Great Britain; borderline cases will depend on an assessment of all the circumstances of the employment in the particular case.
19. Having heard argument in all of these cases, particularly the Pilots case, we have concluded that, in borderline cases, the task of the Employment Tribunal is not dissimilar to that faced when deciding whether or not an applicant is an employee, that is, employed under a contract of service. Identify the relevant factors and make an overall judgment as to which side of the line the facts of the particular case fall.
20. However, unlike the now extensive learning on the identification of contracts of service, involving irreducible minima including mutuality of obligation, personal service and sufficient control by the employer, the newly-minted test of employment in Great Britain does not readily lend itself, at this stage of its development, to a similar approach.
21. At all events it is clear that in each of the present cases, decided before judgment was handed down by the Court of Appeal in Serco on 24 January 2004, the Tribunal has not applied the employment in Great Britain test. To that extent, without any hint of criticism since the test now formulated by the Court of Appeal rejected all that had gone before (and, apparently, that which was argued before the court by all three parties, the Foreign & Commonwealth Office intervening), it necessarily follows that each Tribunal misdirected themselves in law in deciding the ERA jurisdiction issue before them.
22. Our task, with the benefit of the test as it has now been revealed by the Court of Appeal, is to determine what course should be taken in each of these cases.

Application to the Present Cases

23. In our judgment the cases of Expro and SSAFA both fall into the category of cases where it is not difficult to decide whether the employment is in Great Britain.
24. Mr Birnie was not represented before us but has relied on written submissions. It is conceded on his behalf, applying the Serco test, that, having been employed by Expro solely in Nigeria, his employment was not in Great Britain. It is not our practice to allow appeals by consent without ourselves considering whether the reasoned decision of an Employment Tribunal should be set aside (J Sainsbury plc v Moger [1994] ICR 800).
25. Having considered the matter we have no doubt that the concession was properly made. Employment wholly in Nigeria cannot be employment in Great Britain. The appeal must be allowed and the decision of the Tribunal set aside. It had no jurisdiction to consider Mr Birnie's complaint of unfair dismissal.
26. However, that is not quite the end of Mr Birnie's case. Application is made on his behalf, very late in the day, for permission to amend his Answer to add a cross-appeal. At paragraph 22 of their reasons the Newcastle Employment Tribunal, having, wrongly in our judgment, assumed jurisdiction to hear the unfair dismissal complaint, considered whether it should give further directions for the future conduct of the case, including a potential application under Rule 21 of the Employment Tribunal Rules of Procedure to transfer the matter to Scotland.
27. By his proposed cross-appeal Mr Birnie wishes to contend that the Tribunal erred in deciding the ERA jurisdiction question before deciding whether to make a transfer direction under Rule 21.
28. The point is developed in the written submission lodged on his behalf. It is there argued that it is wrong to read into the procedure regulations a requirement for the Applicant to establish jurisdiction before a transfer direction is made. If the matter is now transferred to the Aberdeen Tribunal the decision as to jurisdiction will be made by that Tribunal on the basis of Scots law, the Scottish Tribunal not being strictly bound by the Court of Appeal decision in Serco.
29. This application is open to a number of objections, each of which is taken by Mr John Hand QC on behalf of Expro. First, the application is well out of time and ought not to be allowed on that ground alone. Secondly, the Applicant chose to commence his proceedings before an English Tribunal and not in Scotland. He cannot now complain that he brought his claim in a forum which has no jurisdiction to consider it. Thirdly, we have been referred to directions issued by a Chairman, Mr D Reed, in this case on 16 July 2003. It is clear that the question of jurisdiction in the English Tribunal was to be considered before the question of transfer. There was no appeal against that order. Fourthly, Expro will suffer prejudice in having to relitigate the jurisdiction issue in Scotland, having now succeeded on the point in this appeal. Finally, the ERA applies equally to England and Scotland. There is no reason to think that a Scottish Tribunal would reach a different conclusion to our own, following the Court of Appeal decision in Serco.
30. We accept Mr Hand's submissions and for all those reasons refuse to grant permission to Mr Birnie to amend his Answer.
31. We think that Mrs McClymont's case is equally clear. She was employed wholly in Germany. She cannot fall within the Serco test of employment in Great Britain. In seeking to support the Tribunal's assumption of jurisdiction in her case, Mr McClymont, appearing on his wife's behalf, drew our attention to the Status of Forces Agreement 1955 and Standing Orders for the British Army in Germany, applying among others, to SSAFA employees including Mrs McClymont, which sets out the procedure for deciding jurisdiction in criminal cases. He also referred us to clause 24 of Mrs McClymont's employment contract with SSAFA, which provides that the agreement was governed by and should be construed in accordance with English law and the parties submitted to the jurisdiction of the English Courts.
32. We do not find that those facts assist her cause. The arrangements for criminal proceedings do not determine whether her employment was in Great Britain. The proper law of the contract is immaterial. ERA section 204 (1). The parties cannot, be consent, confer on the Tribunal a jurisdiction which it does not possess.
33. We accept the submission of Mr Stafford QC that the facts of this case are remarkably similar to those in Serco. This was employment by an employer based in Great Britain, providing support services for the armed forces abroad. Mrs McClymont is of British nationality, recruited in this country to work abroad (cf. the facts of Serco. Pill LJ, para. 2).
34. In these circumstances we shall allow SSAFA's appeal, set aside the decision of the London (South) Employment Tribunal and declare that the Tribunal does not have jurisdiction to entertain Mrs McClymont's claim of unfair dismissal.
35. Sysdeco and parts of the Pilots case are more problematic. We find it convenient to deal with the issues there raised, both of ERA and breach of contract jurisdiction, on a case-by-case basis.

Breach of Contact Jurisdiction

36. The Tribunal jurisdiction to entertain claims for breach of a contract of employment (or connected contract) stems from section 3 of the Employment Tribunals Act 1996 ("ETA").
37. By Article 3 (a) of the 1994 Order, made under the predecessor to section 3 (2) ETA, proceedings may be brought before an Employment Tribunal in respect of a claim to which section 3 (2) applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine.
38. The relevant rules of court are to be found in CPR Part 6. The High Court or County Court ("the Court") does not have jurisdiction to hear a claim for breach of contract brought against a company which is neither incorporated nor registered in England and Wales (a foreign company) in circumstances where the claim cannot validly be served in accordance with the requirements of CPR. Thus:

(1) A foreign company may be validly served without the permission of the court where:

(a) it has a place within the jurisdiction where the corporation carries on its activities; or

(b) has a place of business within the jurisdiction. R6.5(6)

In the Pilots case it is common ground that CPA has a place of business within the jurisdiction and therefore may be served here.

(2) If not, valid service can be effected on a defendant out of the jurisdiction without the permission of the court where each claim made is a claim which the court has power to determine under the Civil Jurisdiction and Judgments Act 1982 and:

(a) no proceedings between the parties concerning the same claim are pending in the courts of any other part of the UK or any other Convention territory; and

(b) the defendant is domiciled in the UK or in any Convention territory. R16.19.

In Sysdeco it was common ground that each of the three foreign corporate Respondents fell within these provisions if Miss Atkins was habitually employed in England.

(3) If not, service out of the jurisdiction may be effected with the permission of the court, in relation to contract claims, among others, where a claim is made in respect of a breach of contract committed within the jurisdiction (R6.20(6)). On an application for permission the court will not give permission unless satisfied that England and Wales is the proper place to bring the claim (R6.21(2A)). Generally, the onus lies on the claimant to show that service out of the jurisdiction is justified.

(4) Finally, the issue of the application of the doctrine of forum non conveniens can more conveniently be dealt with when considering the question of breach of contract jurisdiction in the Pilots case below.

Sysdeco

39. The Reading Tribunal found that Miss Atkins was habitually employed in England. They regarded her home in Surrey from which she worked as the effective centre of her working activities, applying Rutten v Cross Medical Ltd (Case C-383/95) ECR (1997) 1-00057 (ECJ). Accordingly the Tribunal had jurisdiction to entertain her claim of breach of contract against each Respondent.
40. As to the ERA jurisdiction, the Tribunal directed themselves by reference to Regulation 11 (5) of the 2001 Regulations in finding that it had jurisdiction in this case. That test was expressly disapproved by the Court of Appeal in Serco. It follows that that part of the decision is flawed in law.
41. In this appeal Mr Croxford, on behalf of the companies, submits that, in relation to the breach of contract claim, the Tribunal misdirected themselves in law in considering that the Applicant was either habitually employed in England or in Ireland or in Northern Ireland. They did not consider whether she was not habitually employed in any one country. Further, that the Tribunal took into account as a relevant factor the fact that she did not need to spend as long in Ireland as England in performing her work. Alternatively, he submits that the Tribunal's reasoning, principally to be found at paragraph 4 EWR, is not "Meek-compliant", that is, does not adequately explain to the parties why they have won or lost on this point.
42. As to the ERA jurisdiction, Mr Croxford points to the Tribunal's admitted misdirection in law and submits that the case must be remitted for rehearing before a fresh Tribunal, in order to answer the Serco question, was she employed in Great Britain, as well as the breach of contract jurisdiction question. His oral submissions were supplemented by further written submissions, dated 21 May 2004, following the oral argument in the Pilots case, we have taken those into account.
43. Mr Cheetham, in a spirited defence of the Tribunal's finding on breach of contract jurisdiction, submits:

(a) that on a proper reading of paragraph 4 EWR, the Tribunal correctly recognised the question as being whether Miss Atkins was employed in Ireland or not in any one country, as opposed to England, as had been submitted on behalf of the companies;

(b) that the Tribunal did not regard the time spent in any one location as conclusive, following Rutten (para. 27. Judgment of the court); and

(c) reached a permissible conclusion on the facts as found that she habitually worked in England; that was the effective centre of her working activity.

44. As to the ERA jurisdiction, Mr Cheetham contended that although the Tribunal applied the wrong test, nevertheless, having found that Miss Atkins habitually worked in England that was powerful support for a finding that she was employed in Great Britain. He invites us to affirm that part of the Tribunal's decision on the grounds that, properly applying the law in accordance with the Serco test, the Tribunal's conclusion that it had jurisdiction to entertain the ERA claim was plainly and unarguably right. He had no further submissions following the argument in the Pilots case.
45. In our judgment the course proposed by Mr Croxford is correct. We shall allow this appeal and remit both jurisdiction issues to a fresh Tribunal for reconsideration. Our reasons are as follows. On the breach of contract issue we are not persuaded that the Tribunal took into account the approach identified by the ECJ in Weber v Universal Ogden Services Ltd [2002] QC 1189. Judgment, paras. 49-53. In particular, account does not appear to have been taken of, and findings of fact made as to, the nature and importance of the work done both in England and in Ireland. We are not persuaded that in setting out the companies' case the Tribunal then went on to consider the possibility that Miss Atkins did not habitually work in any one country. It appears to us also that the Tribunal's conclusion is not reasoned from their findings of fact, unless it be solely and impermissibly the number of days spent here and in Ireland and in Northern Ireland, the question not being simply one of mathematics.
46. As to the ERA jurisdiction, it is plain from paragraph 6 EWR that the Tribunal's finding that the Applicant habitually worked in England was applied to the ERA question. That cannot stand. We are not persuaded that the conclusion as to ERA jurisdiction is plainly and unarguably right. Consequently, both issues will be remitted for rehearing.

The Pilots Case

47. The issues in these appeals are as follows:

CPA Pilots

(1) Mr Griffith-Jones QC accepts that the CPA pilots were not employed in Great Britain for the purposes of the Serco test. Accordingly, he does not pursue their appeal against the Tribunal's finding that it does not have ERA jurisdiction at this level, whilst expressly reserving his position should the matter proceed beyond the Court of Appeal.

(2) Mr Jeans QC accepts, and it is common ground, that CPA has a place of business within the jurisdiction and that therefore the Tribunal has jurisdiction to entertain the CPA pilots' claims for breach of contract, subject to the doctrine of forum non conveniens.

The CPA pilots appeal against the Tribunal finding that it is not the proper forum on the grounds that:

(i) the doctrine does not apply to Tribunal proceedings or, if it does;

(ii) the Tribunal was wrong in law in its application of the doctrine to the CPA pilots' breach of contract claims.

CPA opposes this appeal on both limbs.

Veta Pilots

(1) Veta appeals against the Tribunal finding that it has ERA jurisdiction in these cases.

(2) Veta also appeals against the Tribunal finding that it has breach of contract jurisdiction.

Both appeals are opposed.

Mr Parrock

He appeals against the Tribunal's findings

(i) that it has no ERA jurisdiction; and

(ii) no breach of contract jurisdiction

in his case. That appeal is opposed.

We shall deal with the issues in that order.

CPA Pilots

(1) ERA Jurisdiction

In the light of the concession made at this level by Mr Griffith-Jones on behalf of these pilots, we dismiss this appeal.

(2) Breach of Contract Jurisdiction

Given that CPA can be validly served within the jurisdiction under CPR 6.5(6), having a place of business here, was the Tribunal entitled to stay these proceedings on forum grounds?

48. The first question is whether the doctrine applies to Tribunal proceedings. The Tribunal found that it did (EWR paras. 44-45). Mr Griffith-Jones challenges that approach. He submits that the Tribunal is a creature of statute, not possessed of an inherent jurisdiction, see Barber v Staffordshire County Council [1996] IRLR 209, para. 22, per Neill LJ, approving a passage in the judgment of Mummery P in Biggs v Somerset County Council [1995] IRLR 452, para. 71, itself directed to the Employment Tribunal's statutory jurisdiction confined to complaints under specific statutes. See also the observations of Neill LJ in Potter v Secretary of State for Employment [1997] IRLR 21, para. 39 (a), 95-98. Since the power to stay on forum grounds arises in the ordinary courts under the court's inherent jurisdiction it has no place in the Employment Tribunal.
49. We see the force of that submission in relation to, for example, ERA jurisdiction which is purely statutorily based. However, we think that the breach of contract jurisdiction exercised by the Tribunal under the 1994 Order is in a different category. That possibility was recognised by Pill LJ in Serco, paragraph 29, albeit the point did not arise for determination in that case.
50. The Tribunal jurisdiction to entertain breach of contract of employment claims (limited to £25,000) precisely shadows the jurisdiction of the ordinary civil courts to hear such claims. Hence, Article 3. Parliament envisaged, as long ago as the Industrial Relations Act 1971, section 113, that it may be convenient for tribunals dealing with unfair dismissal claims to have jurisdiction also to consider associated breach of contract of employment claims which would otherwise have to be separately litigated between the parties in the ordinary courts.
51. In these circumstances we are satisfied that when applying the ordinary jurisdiction rules applicable to the courts under Article 3 the Tribunal equally has power to consider the application of the forum doctrine and in an appropriate case to order a stay under Rule 15 (7) of the Employment Tribunal Rules of Procedure. We reject Mr Griffith-Jones' first submission.
52. As to the application of the doctrine to the CPA pilots' breach of contract claims, the Tribunal, EWR paragraph 46, directed themselves in accordance with the principles laid down by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460. Applying those principles they held, EWR paragraph 51, that CPA's arguments that the proper forum was Hong Kong, where the breach of contract claims can be pursued, were overwhelming for the reasons there given. Those claims were stayed.
53. Mr Griffith-Jones recognised the task he faced in challenging that finding as a matter of law. We also bear in mind the observation of Lord Templeman in Spiliada, 465 E-G, that the solution of disputes about the relative merits of trial in England and abroad is pre-eminently a matter for the trial judge, here the Employment Tribunal. Nevertheless, he submits that the Tribunal failed to take into account the fact that CPA pilots, although living in Hong Kong during their employment, were now unemployed and living in England. Further, the grounds on which the Tribunal exercised its discretion in holding (EWR, para. 50), that the contract claims of the Veta pilots ought to be brought here, applied equally to the CPA pilots.
54. For the reasons advance by Mr Jeans we reject this appeal. It seems to us that the Tribunal was perfectly entitled to conclude that the CPA pilots, employed in Hong Kong under contracts governed by Hong Kong law which could be litigated upon in Hong Kong, ought to be litigated there. Now neither claim will be heard here.

Veta Pilots

(1) ERA Jurisdiction

Applying the proper or sufficient connection test the Employment Tribunal concluded (EWR para. 23) that it had jurisdiction to entertain these pilots' ERA claims.

55. Whilst it follows that the Tribunal failed to apply the correct test, as formulated by the Court of Appeal in Serco, the debate before us on both sides has been directed to the dual propositions that, applying the correct test, the Tribunal's conclusion was plainly and unarguably wrong (Mr Jeans) or plainly and unarguably right (Mr Griffith-Jones).
56. We do not propose to rehearse the factual matters and difference in emphasis contained in the rival submissions. Plainly both cannot be right; in fact, in our judgment, neither is.
57. Unlike the case of Expro Gulf and SSAFA, which we found to be plain on their facts, the case of the Veta pilots is right on the borderline. In these circumstances we have concluded that the proper course is to remit this matter for reconsideration in the light of the Serco test. A further issue has arisen as to whether it should be remitted to the same or a different Tribunal. We should like to take this opportunity to acknowledge the careful and detailed reasons prepared by Mr Snelson on behalf of the Tribunal; we see the force of Mr Griffith-Jones' submission that the same Tribunal, with its clear grasp of the facts and open-handed approach to the parties, is well-placed to reconsider its findings in the light of the Serco test. Nevertheless, on balance, we prefer the submission of Mr Jeans that this ought to be remitted to a fresh Tribunal for rehearing. The reason lies in EWR paragraph 56, where the Tribunal confess that their analysis led to an outcome which accorded with justice and common sense in the eyes of all three members of the Tribunal. On remission to the same Tribunal we can see that there may be a perception on the part of Veta that if, applying the Serco test, the Snelson Tribunal reaches the same conclusion as before, they may not have approached the matter entirely free of preconceptions. Such a perception is enough to persuade us to follow the course suggested by Mr Jeans. The Veta appeal on this part of the case succeeds; the ERA jurisdiction question is remitted to a fresh Tribunal for rehearing.

(2) Breach of Contract Jurisdiction

58. The following potential issues arise for consideration on Veta's appeal:

(i) Did Veta have a place of business or carry on its activities at a place in Great Britain (CPR 6.5(6))? The Tribunal found that it did carry on its activities here (EWR para. 34). Veta challenges that finding.

(ii) If not, did the alleged breach of contract take place in Great Britain (CPR 6.20(6)) so that Veta may be served out of the jurisdiction with permission. The Tribunal held that it did (EWR para. 37).

(iii) If so, would the court refuse permission applying Rule 6.21 (2A) which provides:

"The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim."

(iv) Finally, ought these claims to be stayed under the forum doctrine?

59. We address those issues in turn.

(i) The Tribunal found (EWR para. 29) that Veta carries on business here within Regulation 11 (5) (a) of the Employment Tribunal Procedure Regulations 2001. By parity of reasoning they found (para. 34) that Veta carries on its activities within the jurisdiction, that is, it employs and equips aircrew and supplies their services to CPA at LHR, and could be validly served at CPA's offices there.

Mr Jeans submits that this factual setting does not amount to Veta carrying on its activities here. We disagree. It seems clear from the facts found by the Tribunal that Veta was set up by CPA to provide aircrew for the European base from LHR. That was the place at which it carried out its activities. It could be served at CPA's offices here.

(ii) Were it necessary to do so we would have found that the alleged breach of contract was committed in the jurisdiction where the Veta pilots received their letters of dismissal, for the purpose of Rule 6.20 (6). In this respect we uphold the Tribunal's reasoning in respect of USAB at EWR paragraph 37, equally applicable to Veta pilots.

(iii) On the facts of the Veta case (cf. USAB. EWR para.39) we are unable to say that we are satisfied that England is the proper place in which to bring the breach of contract claim (R6.21 (2A)) for the reasons which follow under (iv).

(iv) Given that the forum doctrine applies, the difficulty with the Tribunal's application of that doctrine to the Veta pilots (EWR para. 50) is that they took into account, as a factor in favour of hearing these claims in the Tribunal, their conclusion that the Tribunal had jurisdiction to entertain the ERA claims brought by these pilots. Since that matter has been remitted to a fresh Tribunal for rehearing it follows in these circumstances that the question of the proper forum for the contract claims must also be remitted for rehearing by that Tribunal.

Mr Parrock

60. We mean no disrespect to the arguments deployed by Mr Griffith-Jones in support of Mr Parrock's appeal when we say that there is no substance in them. Plainly he was not employed in Great Britain; he was employed in the USA. The fact that he did not have a green card is nothing to the point when considering the Serco test for ERA jurisdiction. Nor is the mere fact that he chose to live in England sufficient to tilt the balance in favour of employment in Great Britain.
61. As to his breach of contract claim, we agree with the Tribunal that:

(1) USAB did not have a place of business or carry on its activities within the jurisdiction (R6.5 (6); EWR para. 34).

(2) Although the alleged breach of contract in this case was committed her (R6.20 (6)) the Tribunal was entitled to conclude that it was not satisfied under Rule 6.21 (2A) that England was the proper place for Mr Parrock to bring his claim (EWR para. 40).

62. Accordingly Mr Parrock's appeal fails and is dismissed.

Summary

(1) UKEAT/0222/04/DA. The appeal by Expro is allowed; permission to add a cross-appeal by Mr Birnie is refused. The Tribunal has no jurisdiction to consider his ERA claim.

(2) UKEAT/0164/03/DA. The appeal by SSAFA is allowed. We make a similar declaration to that in Expro in respect of Mrs McClymont's claim.

(3) UKEAT/0080/04/DA. The appeal by the Sysdeco companies is allowed. Both the issues of ERA and breach of contract jurisdiction are remitted to a fresh Tribunal for rehearing.

(4) UKEAT/0367/03/DA & UKEAT/0368/03/DA.

(i) the appeal by the CPA pilots against the Tribunal's finding that it has no jurisdiction to entertain their ERA claims is dismissed.

(ii) the CPA pilots' appeal against the Tribunal's stay of proceedings on their claims of breach of contract is dismissed.

(iii) the appeal by Veta against the Tribunal's finding that it has jurisdiction to entertain both the ERA and breach of contract claims brought by the Veta pilots is allowed; both issues are remitted to a fresh Tribunal for rehearing.

(iv) the appeal of Mr Parrock is dismissed in its entirety.