United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0110/10/JOJ

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

At the Tribunal

On 19 October 2010

Judgment handed down on 25 January 2011

 

 

 

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

MR A HARRIS

MR J MALLENDER

 

 

 

 

MR G SHAW APPELLANT

 

 

 

 

 

 

B&W GROUP LTD RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR G SHAW (The Appellant in Person)
For the Respondent	MR GAVIN MANSFIELD (of Counsel) Instructed by: EEF South Legal Services Broadway House Tothill Street London SW1H 9NQ

 

SUMMARY

 

JURISDICTIONAL POINTS

2002 Act and pre-action requirements

Working outside the jurisdiction

 

A claim for breach of contract under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 is within the scope of Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 as the Order is listed in Schedule 3 to the Employment Act 2002.  The Employment Tribunal (‘ET’) erred in holding that a breach of contract claim did not fall within Regulation 15.  The Claimant had set out a written grievance complaining of breach of contract within three months of the effective date of termination of his employment.  Time for presentation of the breach of contract complaint is to be extended for a further three months by application of Regulation 15.  Claim remitted for hearing.

 

The ET did not err in holding that on the facts a written grievance about conduct said to constitute constructive dismissal was a grievance that the employer was contemplating dismissing the Claimant.  The ET did not err in holding that the time for presentation of the Claimant’s claim for unfair dismissal was not extended by Regulation 15 since Regulation 6(5) applied.  South Kent College v Hall UKEAT/0087/07 considered.

 

Observations on the obiter finding that the ET would have had territorial jurisdiction to hear the unfair dismissal claim had it not been held to have been presented out of time.  Lawson v Serco [2006] IRLR 289 and Ministry of Defence v Wallis & another [2010] UKEAT 0546/08/3007 considered.

 

 

 

 

THE HONOURABLE MRS JUSTICE SLADE DBE

 

1.               Mr George Shaw appeals from the dismissal of his claims of unfair dismissal and breach of contract by a judgment of an Employment Tribunal (‘ET’) entered in the Register on 15 December 2009.  The judgment was given at a preliminary hearing to determine whether the ET had jurisdiction to hear Mr Shaw’s claims for breach of contract and unfair dismissal.  The ET held that both claims had been presented out of time and therefore they did not have jurisdiction to hear them.  B&W Group Ltd cross appeal from the decision of the ET that they would have had territorial jurisdiction to hear Mr Shaw’s claim for unfair dismissal if they had not dismissed it as being presented out of time.  We will refer to the parties by their titles before the ET as Claimant and Respondent.  Unless otherwise indicated in this judgment references to Regulations are to the Employment Act 2002 (Dispute Resolution) Regulations 2004.

 

2.               The Claimant’s employment came to an end on 11 April 2008.  The complaints of unfair dismissal and breach of contract were presented to the ET on 31 July 2008. Both unfair dismissal and breach of contract claims were to be presented to an ET within the period of three months beginning with the effective date of termination of employment (Employment Rights Act 1996 (‘ERA’) section 111; Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (‘the Order’) Article 7.  Since the time limit for presenting both the breach of contract claim and the unfair dismissal claim expired on 10 July 2008 the ET considered whether the time limit for presenting the claims should be extended by operation of Regulation 15 or by Article 7(c) of the Order in relation to the breach of contract claim and ERA section 111(2)(b) in relation to the unfair dismissal claim.

 

3.               The first issue for the ET in deciding whether the claims were presented in time was whether Regulation 15 applied so as to extend the time limit for presentation of each claim for a period of three months beginning with the day after the day on which it would otherwise have expired.  Such an extension occurs when a statutory grievance procedure applies to a complaint under a jurisdiction listed in Schedule 3 or 4 of the Employment Act 2002 (‘EA 2002’).  By Regulation 6(5) such a grievance procedure does not apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee.  The Claimant contended that the ET erred in holding that Regulation 15 did not apply to the breach of contract claim and in deciding that the limitation period for his unfair dismissal claim was not extended because his grievance fell within Regulation 6(5).

 

4.               Further the Claimant contended that the ET erred in holding that it was reasonably practicable for him to have presented his breach of contract claim within three months of the effective date of termination of his employment and therefore that the time for presentation of the complaint could not be extended pursuant to Article 7(c) of the Order.  The ET also held that it was reasonably practicable for the Claimant to have presented his unfair dismissal claim in time.  The Claimant does not appeal from the finding that it was reasonably practicable to have presented his unfair dismissal claim within three months of 11 April 2008.  However the ET applied the same considerations in reaching this conclusion in the context of the unfair dismissal claim as in relation to the breach of contract claim.

 

5.               The Respondent cross-appeals from the decision of the ET that it had territorial jurisdiction to hear the Claimant’s claim for unfair dismissal.  However the ET dismissed the claim as they held that it had not been presented in time.

 

 

Summary Facts

6.               The facts are taken from the findings made by the ET save as otherwise indicated.

 

7.               The Claimant is normally resident in Hong Kong. The Respondent is a substantial company with a global turnover in excess of £100,000,000 producing and selling loudspeakers and other associated equipment.  Its offices are in Worthing.

 

8.               In response to an advertisement placed by an employment consultant based in England the Claimant had job interviews in Hong Kong and then in England with representatives of the Respondent.

 

9.               While in England on 1 January 2007 the Claimant entered into a contract with the Respondent for his employment as General Manager Procurement, Pacific Rim (‘the contract’) for a term of 36 months commencing 8 January 2007.  The contract contained the following terms:

 

“3(1) The employee’s normal place of work will be located in Hong Kong but he shall work temporarily in such other place or places as the Board may from time to time reasonably require for the proper performance of his duties.

…

9(1) This Agreement shall be subject to termination:

…

(b) by either party giving to the other not less than three months’ notice in writing. If the Company dismisses the Employee without due cause, the Company shall continue to pay the Employee his salary on a monthly basis for the lesser of six months or the balance of the term of this Agreement.”

 

 

10.            The ET found at paragraph 41 that the job of the Claimant was

 

“to facilitate the procurement of material or works for use by the Respondent and its associated companies or operations, both in England, and mainly outside of England’.

 

 

There was a manufacturing facility in China which the Respondent controlled although the company running it was Chinese.  80 – 85% of the material produced at this facility was sent to places other than England.

 

11.            At paragraph 44 the ET held:

 

“However, one has to ask first of all what the business of the English Company was. We find the business of the England (sic) Company in relation to these operations was that of providing the material to its associates and subsidiaries. To that extent, therefore, we find that Mr Shaw was working for the benefit of an English company. There was no separate and discrete operation outside of England for which Mr Shaw was responsible.”

 

 

12.            The Claimant alleged in his ET1 that Mr Edwards, the Managing Director of the Respondent, said on 10 April 2008 that he could either resign, in which case he would be paid three months salary, or if he refused, summary dismissal would be invoked ‘with no pay and releasing of an amazing announcement’.  In their ET3 the Respondent denied they dismissed the Claimant and contended that his employment was terminated by mutual agreement.  The ET made no finding as to how the employment came to an end holding at paragraph 30:

 

“…for the purposes of determining jurisdiction without hearing evidence, we assume that the claimant’s [case] is at best that he was constructively unfairly dismissed.”

 

 

13.            By email of 11 April 2008 the Claimant resigned.  He was paid the equivalent of three months salary. By letter dated 17 June 2008 to the Respondent, solicitors acting for the Claimant set out his grievances.  At paragraph 28 the ET held:

 

“That was reiterated in the grievance letter when it was alleged that on 10 April 2008 Mr Edwards (the respondent’s Managing Director) said that he wished to terminate the claimant’s employment forthwith, saying that if he did not resign he would be dismissed summarily without any pay in lieu, and that an amazing announcement would be made as to Mr Shaw’s employment and its termination. At the last sentence of the grievance letter on page 131 it alleged Mr Edwards again repeated that he wanted the claimant’s letter of resignation immediately, saying “You can’t do anything about it; I want your resignation in writing.” The following sentence says, “It is clear from review of Mr Edwards’ word[s] and conduct that the company’s acted in a manner [calculated] to destroy the relationship of confidence and trust, an implied term of the contract. The unjustified ultimatum set by Mr Edwards was a fundamental repudiatory breach of contract which our client accepted by way of his resignation by email on 11 April 2008. As such, you have constructively dismissed our client.””

 

Not referred to in the judgment of the ET is a further grievance set out in the letter of 17 June 2008. This was that:

 

“Despite having no due cause to terminate our Client’s employment you have not paid him 6 months salary as his contractual entitlements.”

 

14.            The ET found that:

 

“13. Mr Shaw is resident in Hong Kong. After 11 April 2008, he carried out extensive research on the Internet as to his employment law and contractual rights, and spoke to a number of solicitors in England. Certainly initially he says that his conversations with those solicitors were confined to discussions about fees. However, it is quite clear to us that by 17 June 2008 he had formally instructed solicitors to act for him, and by 8 July 2008 he was aware that there was a normal three month time limit for presenting a complaint to the Tribunal, it being his evidence that he had raised with the solicitors the fact that that was the case and had been told by them that in relation to both the unfair dismissal claim and in relation to the breach of contract claim, he had a three month extension of time.”

 

15.            The ET1 was presented on 31 July 2008.

 

The Relevant Statutory Provisions

16.            The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (‘the Order’) provides:

 

“7. An employment tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented—

(a)within the period of three months beginning with the effective date of termination of the contract giving rise to the claim,

…

(c)where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.”

 

The Employment Act 2002 (Dispute Resolution) Regulations 2004 (‘the Regulations’) provide:

 

“2(1) In these Regulations—

…

“dismissed” has the meaning given to it in section 95(1)(a) and (b) of the 1996 Act;

…

6(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

…

15(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and—

…

(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.

…

(3) The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal—

…

(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit.”

 

The Judgment of the ET

The Breach of Contract claim

17.            The ET held that Regulation 15 of the Regulations did not apply to breach of contract claims made under the Order.  At paragraph 17 the ET held:

 

“The problem for Mr Shaw is this: that Section 32 of the Employment Act 2002 provides that the section applies to the jurisdictions listed in Schedule 4. Schedule 4 makes no reference to the jurisdiction in contract under the Extension of Jurisdiction Regulations. Therefore we accept Ms Hudson’s submission that there is no extension of time in relation to breach of contract.”

 

18.            The ET then considered whether time for presentation of the breach of contract complaint should be extended under Article 7(c) of the Order if it was not reasonably practicable for the Claimant to have presented his breach of contract claim within three months of 11 April 2008, the limitation period provided by Article 7(a).  The ET held at paragraph 19:

 

“In the ordinary sense of the words, it was reasonably practicable for Mr Shaw to have presented the claim within time. Well prior to 10 July 2008 he had researched the law, he was writing detailed letters or emails to the respondent raising issues, he had engaged solicitors who could well have instituted proceedings, either in the court for breach of contract, or in the Tribunal; and on Mr Shaw’s evidence the only reason for so not doing was the advice that one should wait for a response and that he had the benefit of a three month extension.”

 

Having referred to the relevant authorities the ET found at paragraph 22 that it was reasonably practicable for the Claimant to have presented his claim for breach of contract in time.

 

19.            Since the ET held that Regulation 15 did not apply to the breach of contract claim and they were not satisfied that it was not reasonably practicable for the complaint to be presented in time, they dismissed the Claimant’s breach of contract claim.

 

The Unfair Dismissal claim

20.            As is shown by paragraph 30 of the judgment, for the purposes of determining jurisdiction the ET assumed that the Claimant was claiming that he had been constructively dismissed.  They held that the grievance which the Claimant raised in his solicitor’s letter of 17 June 2008 ‘was that the Respondent was contemplating dismissing’ him.  Accordingly the ET held that by reason of Regulation 6(5) the statutory grievance procedures did not apply and the Claimant could not benefit from the extension of time for presenting his unfair dismissal claim provided by Regulation 15.

 

21.            The ET then considered ERA section 111(2)(b) and whether it was not reasonably practicable for the Claimant to have presented his unfair dismissal claim in time.  At paragraph 31 the ET held that the same considerations applied as to the question which arose in relation to Article 7(c) and the breach of contract claim.  The ET found:

 

“Again it is clear that the Claimant says that he was advised that he had a three month extension of time.”

 

The ET held that advice to be incorrect.  On the basis of the reason advanced by the Claimant for the delay in presenting his claims the ET held that it was reasonably practicable for him to have presented the unfair dismissal complaint in time.

 

22.            Whilst the finding that the complaint of unfair dismissal was not presented in time was sufficient to dismiss it, the ET considered whether they had territorial jurisdiction to consider the unfair dismissal claim.  The ET considered Lawson v Serco Ltd [2006] IRLR 289 and Dolphin Drilling Personnel Pte Ltd v Winks EATS/49/2008 and in particular the reference by Lord Hoffman in Serco to ‘expatriate employees’. Having considered the facts of the Claimant’s case summarised above, at paragraph 47 the ET held:

 

“We therefore find that there was such a connection between Mr Shaw and the company in England, and he being [an] English citizen (he had a UK passport even if that was unknown to the respondent), that the claimant in this case is within the exceptions identified by Lord Hoffman. However, although this would give the Tribunal territorial jurisdiction, it does not give it jurisdiction because we have determined that this case was not presented within the applicable time limits. Accordingly these claims are dismissed.”

 

The Contentions of the Parties

The Breach of  Contract Claim

23.            Gavin Mansfield, counsel for the Respondent, rightly agreed that the ET erred in holding that Regulation 15 did not apply to claims for breach of contract under the Order. Regulation 15 applies to claims pursuant to the statutory provisions listed in Schedule 3 to the Employment Act 2002 (‘EA 2002’).  The Order is listed in Schedule 3.

 

24.            However Mr Mansfield contended that the decision of the ET that Regulation 15 did not apply to extend the time limited for presentation of the Claimant’s breach of contract claim was to be upheld on the basis that the Regulation was disapplied by operation of Regulation 6(5). He submitted that the grievance raised on behalf of the Claimant in the letter of 17 June 2008 from his solicitors was in substance that the Respondent was contemplating dismissing the Claimant.

 

25.            The Claimant contended that the letter from his solicitors dated 17 June 2008 included a grievance that:

 

“…you have not paid him 6 months salary as is his contractual entitlement.”

 

He also relied upon four emails sent in early May 2008 to the Respondent in which he complained about the outstanding salary due to him. The Claimant contended that in substance the grievance letter of 17 June 2008 raised three matters, one of which that the Respondent had not paid him six months salary as was his contractual entitlement.

 

26.            Further, the Claimant contended that the ET erred in holding that they were not satisfied that it was not reasonably practicable for the complaint of breach of contract to have been presented within the time limit of three months beginning with the effective date of termination giving rise to the claim provided by Article 7(a) of the Order.

 

27.            The Claimant contended that:

 

“It is unreasonable that a breach of contract claim is filed first without invoking a valid constructive dismissal complaint, in the light of the Respondent’s defence that this being a voluntary resignation. The claim was not filed within 3 months but was done within reasonable time thereafter.”

 

He submitted that the ET therefore erred in not holding that applying Article 7(c) it was not reasonably practicable to present the claim within three months of the date of termination and should have held that the breach of contract claim was presented within a further reasonable period.

 

28.            Rightly the Claimant submitted that the issue of extension of time under Article 7(c) does not arise if the ET erred in holding that time was not to be extended under Regulation 15.

 

29.            Mr Mansfield submitted that the treatment complained of by the Claimant in his solicitor’s letter of 17 June 2008 was that the Respondent was contemplating dismissing him. The solicitors wrote:

 

“We are instructed that on 10^th April 2008 during a meeting between your Geoff Edwards and our Client, Mr Edwards stated that you wished to terminate Mr Shaw’s employment forthwith, saying that if he did not resign he would be dismissed summarily.”

 

Although the complaint was one of constructive dismissal, by reason of an alleged breach of the implied term of trust and confidence, the substance of the alleged breach was that the Respondent was contemplating dismissing the Claimant.  Accordingly the statutory grievance procedures did not apply to the breach of contract complaint and by operation of Regulation 6(5), Regulation 15(1)(b) could not be relied upon to extend time for presentation of the complaint.

 

30.            As for the challenge to the finding of the ET that the Claimant had not established that it was not reasonably practicable to have presented his breach of contract claim in time Mr Mansfield contended that the decision of an ET on this issue was essentially one of fact with which the ET should be slow to interfere.

 

31.            Mr Mansfield relied upon the findings of the ET for the delay in presentation of his claims.  He summarised the findings reached by the ET at paragraph 19 as follows:

 

“Well prior to 10 July 2008 C had researched the law, written detailed letters or emails to R raising issues, and had engaged solicitors. ‘In the ordinary sense of words’ it was reasonably practicable for him to have presented the claim in time.”

 

32.            Mr Mansfield contended that in considering whether it was reasonably practicable for the Claimant to have presented both his contract and unfair dismissal claims in time the ET considered and applied the correct legal principles and came to a conclusion open to them on the evidence.

 

The Unfair Dismissal Claim

33.            The Claimant contended that the ET erred in holding that he could not benefit from the extension of time for presentation of his unfair dismissal claim otherwise provided by Regulation 15 as the grievance raised by him was that the Respondent was contemplating dismissing him.  The ET erred in holding that by operation of Regulation 6(5), the statutory grievance procedures and Regulation 15 did not apply.

 

34.            In accordance with the definition provisions of Regulation 2 ‘dismissed’ has the meaning given to it in ERA section 95(1)(a) and (b).  It does not mean dismissals within section 95(1)(c), constructive dismissal.  The Claimant contended that the relevant grievance in the letter of 17 June 2008 was that the Respondent had acted in a manner calculated to destroy the relationship of trust and confidence between them.  The solicitors wrote on 17 June 2008 that the unjustified ultimatum given by Mr Edwards on 10 April 2008 that he wanted the Claimant’s letter of resignation immediately saying “you can’t do anything about it; I want your resignation in writing”, was a fundamental repudiatory breach of contact which was accepted by the Claimant on 11 April 2008 by his resignation. 

 

35.            It was said by the Claimant that the ET erred in holding in paragraph 30 that the grievance in the letter of 17 June 2008 was that the Respondent was contemplating dismissing the Claimant.

 

36.            The Claimant contended that his case was to be distinguished from that referred to by Elias P (as he then was) in South Kent College v Mr J Hall UKEAT/0087/07/LA in which it was said that Regulation 6(5) would apply to constructive dismissal where the employee’s grievance was that the repudiatory breach was the fact that the employer was contemplating dismissal.  He pointed out that the EAT in South Kent College held at paragraph 36 that:

 

“…a recognition of the possibility that there may be a dismissal further down the line does not mean that dismissal is contemplated within the meaning of [the] Regulation 6(5).”

 

At paragraph 15 of his skeleton argument of 9 September 2010 the Claimant wrote:

 

“The “resign or be dismissed” threat that Appellant was subjected to and which the Tribunal has concluded as a “contemplated dismissal”, at para 28, 30 of the judgment…is nothing more than a posture forcing the Appellant to resign. It can also be hypothesized that if Appellant does not resign, Respondent might offer more inducements, or that a dismissal could occur further down the line if the posture does not achieve the desired resignation, but as in South Kent College case, at para 36, page 10, 11, Justice Elias said:

‘…that possibility is not enough to conclude that dismissal is “contemplated’.”

 

37.            Mr Mansfield submitted that the ET did not err in concluding that the grievance set out in the letter of 17 June 2008 was that the Respondent was contemplating dismissing the Claimant.  Further, the ET did not err in deciding that the Claimant’s case was indistinguishable from that in South Kent College in which the EAT held that a constructive dismissal case could fall within Regulation 6(5) where the repudiatory breach alleged in a grievance was that the employer was contemplating dismissing the employee.

 

38.            By way of cross-appeal the Respondent challenged the conclusion of the ET that if the unfair dismissal claim had been presented in time they would have territorial jurisdiction to hear it.  The Respondent contended that the ET erred in law in concluding that the Claimant’s case fell within the third category of exception to the principle that it is unusual for there to be territorial jurisdiction over a claim by an employee who works and is based abroad explained by Lord Hoffman in Lawson v Serco Ltd [2006] IRLR 289.

 

39.            Mr Mansfield contended that the circumstances in which an expatriate employee who ordinarily works abroad falls within ERA section 94(1), the unfair dismissal provisions, must be exceptional.  In this regard he relied upon the dicta of Lord Hoffman in Serco at paragraphs 36-37, of Cox J in the EAT in YKK Europe Ltd v Heneghan [2010] IRLR 563 in which she held at paragraph 33 that:

 

“In reality it will, in my view, be a rare case indeed where an expatriate employee who ordinarily works abroad will fall within the scope of Section 94(1)”

 

and of Lord Osborne and Lord Carloway in the Court of Session in Ravat v Halliburton [2010] CSIH 52 at paragraphs 16-16 and 27-28.

 

40.            It was contended on behalf of the Respondent that the ET failed to apply the ‘expatriate employee’ exception referred to by Lord Hoffman sufficiently narrowly.  Amongst other matters Mr Mansfield contended that although the ET applied the judgment of the Scottish EAT in Dolphin in regarding the Claimant’s residence as irrelevant to the issue of jurisdiction the fact that the Claimant was resident in Hong Kong and was accustomed to working in the Far East both prior to and during his employment with the Respondent is relevant to the question of whether the Claimant was an expatriate and whether he was posted to work overseas.

 

41.            It was said on behalf of the Respondent that the ET erred in their approach to the test in Serco and its application to the facts of the case.  It erred in law in concluding that they had territorial jurisdiction to hear the unfair dismissal claim.

 

42.            The Claimant contended that the ET did not err in holding that his case fell within the exception to the jurisdictional requirement that an employee work within the jurisdiction.  He contended that on the facts the ET did not err in holding him to be an ‘expatriate employee’ entitled to the protection of the employment legislation.  He contended that he had been ‘posted abroad’ within the meaning of that term used by Lord Hoffman in Serco and Lord Carloway in Ravat at paragraph 27.  He submitted that ‘posted abroad’ means:

 

“…sending someone to a place overseas to take up an appointment. The place he is posted to has no relation to where he lives.”

 

He therefore fell within an exception identified by Lord Hoffman.

 

Discussion and Conclusion

The Breach of Contract Claim

43.            As was agreed on behalf of the Respondent, the ET erred in holding that Regulation 15 did not apply to claims for breach of contract under the Order. The breach of contract jurisdiction pursuant to the Order is listed in Schedule 3 to the EA 2002 to which Regulation 15 applies.

 

44.            The Claimant’s Contract of Employment permitted termination without notice in specified circumstances.  Clause 9(1)(b) provided:

 

“This agreement shall be subject to termination:

…

(b) by either party giving to the other not less than three months’ notice in writing. If the Company dismisses the Employee without due cause, the Company shall continue to pay the Employee his salary on a monthly basis for the lesser of six months or the balance of the term of this Agreement.”

 

45.            The grievance or grievances of the Claimant were set out in the letter dated 17 June 2008 from his solicitor to the Respondent.  They wrote:

 

“Pursuant to said contract of employment, particularly clause 9(b) you were entitled to terminate the contract by giving to our Client not less than 3 months notice in writing (save in cases of gross misconduct, none of which has been alleged). The clause further states that if you were to dismiss our Client without due cause, the Company will continue to pay Mr Shaw the lesser of his salary on a monthly basis for either 6 months or for the balance of the term of the Agreement.

…

We are further instructed that later that evening [on 10 April 2008] and again the following day at the airport, Mr Edwards again repeated that he wanted our Client’s letter of resignation immediately saying “you can’t do anything about it; I want your resignation in writing.”

It is clear from a review of Mr Edwards words and conduct that the Company has acted in a manner calculated to destroy the relationship of confidence and trust – an implied term of the contract.

The unjustified ultimatum set by Mr Edwards was a fundamental repudiatory breach of contract which our Client accepted by way of his resignation by email on the 11^th April 2008. As such, you have constructively unfairly dismissed our Client.

…

Despite having no due cause to terminate our Client’s employment you have not paid him 6 months salary as is his contractual entitlement.

You should accept this letter as a formal grievance raised on behalf of Mr Shaw and if your satisfactory reply is not received within 21 days, proceedings will be issued in either the Tribunal or the County Court for Constructive Unfair Dismissal and/or Breach of Contract.”

 

46.            The Claimant presented two complaints to the ET, one of breach of contract and one of unfair dismissal.  Such complaints arise under different statutory provisions. Where the statutory grievance procedures apply, a grievance must be made in relation to each complaint.

 

47.            In South Kent College the EAT held at paragraph 41:

 

“…if an employee is subject to a dismissal procedure which may lead to his [dismissal for] misconduct, the employer will clearly be contemplating dismissal.  If the employee then complains that he is not being paid his wages, his grievance is wholly independent of the dismissal procedures. It is unrelated to the fact that the employer is contemplating dismissal. Consequently, the employee will have to lodge a grievance before presenting a complaint to a tribunal.”

 

48.            In our judgment the letter of 17 June 2008 raised two distinct grievances. One was of an alleged repudiatory breach by the Respondent of the implied term of trust and confidence in response to which the Claimant resigned and claimed constructive unfair dismissal.  The other was of failure to pay six months’ salary, the Claimant’s contractual entitlement if he were dismissed without ‘due cause’.  The two claims and two grievances are separate and distinct.  If the Claimant had not raised a grievance about the non-payment of six months’ salary an ET hearing his claim would have reduced his award pursuant to the EA 2002 Section 31(2).

 

49.            The grievance that the Respondent had failed in breach of contract to pay the Claimant six months’ salary is not a grievance that the Respondent has dismissed or is contemplating dismissing the Claimant.  Accordingly the grievance does not fall within Regulation 6(5).  The decision of the ET that Regulation 15 does not apply to extend time for presentation of the breach of contract claim cannot be upheld on the basis that it would in any event have been excluded by operation of Regulation 6(5) as is contended by the Respondent.

 

50.            The appeal from the decision of the ET that the breach of contract claim was presented out of time is allowed.  By reason of the application of Regulation 15 it necessarily follows that the time limit for presentation of the breach of contract claim was extended to 10 October 2008. The breach of contract claim presented on 31 July 2008 was in time.

 

51.            The question of whether the ET erred in failing to hold that it was not reasonably practicable for the breach of contract claim within three months of the effective date of termination of the Claimant’s employment is academic in light of our finding in relation to Regulation 15.

 

The Unfair Dismissal Claim

52.            It appears from paragraph 28 of their judgment that in determining whether the grievance relating to dismissal in the letter of 17 June 2008 was that the Respondent was contemplating dismissing the Claimant, the ET based their findings of fact on the allegations made by him.

 

53.            The ET set out the passages in South Kent College which explain that the decision as to whether a grievance in a constructive dismissal case falls within Regulation 6(5) depends upon whether the repudiatory conduct of which complaint is made is sufficiently proximate to dismissal to amount to a complaint that the employer was contemplating dismissal.

 

54.            We do not accept the contention of the Claimant that the grievance raised by him was of repudiatory conduct which could possibly have led to dismissal ‘further down the line’ and that applying the approach in South Kent College it was not a complaint that the employer was then contemplating dismissal.  The factual basis for the reasoning of the ET on the question of whether the grievance regarding dismissal in the letter of 17 June 2008 was that the Respondent was contemplating dismissing the Claimant was the contention made by and on behalf of the Claimant in the ET1 and the grievance letter of 17 June 2008.  In our judgment on the material before them the ET did not err in holding that the Claimant’s grievance was that the Respondent was contemplating his dismissal.  Accordingly the ET did not err in holding that the time for presentation of the unfair dismissal complaint was not extended by Regulation 15 as by Regulation 6(5) neither of the statutory grievance procedures applied to the complaint.

 

55.            By reason of our conclusion that the ET did not err in holding that time for presentation of the complaint for unfair dismissal was not extended by operation of Regulation 15, consideration of the cross-appeal from the finding that the ET had territorial jurisdiction to determine the Claimant’s unfair dismissal claim is not necessary.  However we make some observations on the cross-appeal as we heard argument on the point.

 

56.            The issue of whether there is territorial jurisdiction to determine an unfair dismissal claim is notoriously difficult.  Guidance was given in the speech of Lord Hoffman in Serco. Lord Hoffman posed the question in paragraph 1:

 

“…what connection between Great Britain and the employment relationship is required to make Section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair?”

 

Lord Hoffman explained in paragraph 24 that the answer to the question:

 

“…involves the application of principles, not the invention of supplementary rules.”

 

Lord Hoffman considered exceptions to the standard, normal or paradigm case of the application of Section 94(1) to an employee who was working in Great Britain.  Amongst those exceptions he considered expatriate employees.  At paragraphs 37 and 38 he held:

 

“37. First, I think that it would be very unlikely that someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Great Britain. But that would not be enough. Many companies based in Great Britain also carry on business in other countries and employment in those businesses will not attract British law merely on account of British ownership. The fact that the employee also happens to be British or even that he was recruited in Britain, so that the relationship was “rooted and forged” in this country, should not in itself be sufficient to take the case out of the general rule that the place of employment is decisive. Something more is necessary.

38. Something more may be provided by the fact that the employee is posted abroad by a British employer for the purposes of a business carried on in Great Britain. He is not working for a business conducted in a foreign country which belongs to British owners or is a branch of a British business, but as representative of a business conducted at home.”

 

57.            In Ministry of Defence v Wallis & another [2010] UKEAT 0546/08/3007 Underhill P cautioned against trying to fit the facts of a case into one or other of what are said to be the ‘categories’ prescribed by Lord Hoffman as exceptions to the general rule that it is unusual for an employee who works and is based abroad to come within the scope of British labour legislation.

 

58.            As for the factual basis for their conclusion on the issue of territorial jurisdiction the ET observed at paragraph 42 that they ‘had some difficulty in fully understanding how the Respondent operated.’ They found that the Claimant was working for the benefit of an English company.  Correspondence was addressed to him in Worthing, he visited Worthing at least five times in fifteen months and he was managed by Mr Edwards who was based in England.  The ET therefore found that there was such a connection between the Claimant and the Company in England that his case was within the exceptions identified by Lord Hoffman.

 

59.            If it had been necessary to reach a conclusion on the cross-appeal we would have felt it necessary to remit the territoriality issue to the ET for further findings of fact and consideration of Serco.  On the facts set out in their judgment it is difficult to ascertain whether the ET considered whether the Claimant’s employment was to be viewed in a different light from that of locally engaged staff who would not be within the scope of the unfair dismissal provisions. In order to reach a conclusion on the issue it would be necessary for the ET to decide how the ‘Respondent operated’ and on the roles of staff in the United Kingdom and abroad, of which the Claimant was one, in performing those functions. The principles in Serco would then be applied to those facts.  However since the appeal from the dismissal of the unfair dismissal claim is dismissed on other grounds we make no finding in relation to the cross-appeal.

 

Disposal

60.            The appeal from the dismissal of the breach of contract claim is allowed.  A decision that the claim for breach of contract was presented in time is substituted.  The breach of contract claim is remitted to the same ET, if practicable, for consideration and determination.

 

61.            The appeal from the dismissal of the unfair dismissal claim is dismissed.