THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
1.
Most of those cases which have considered the question whether a
Tribunal may determine a claim brought under domestic employment legislation in
the United Kingdom have concerned claimants in respect of whom there was no
issue that the forum for the determination of that question was within the
United Kingdom. Most, if not all, have concerned claimants whose employer was
British. This case raises the questions of jurisdiction in a case in which
neither of those characteristics are so.
2.
The appeal is from a determination by Employment Judge Hesselberth in a
Tribunal at North Shields on 11 December 2012 dismissing claims upon the basis
that the Claimant had no entitlement to bring them in the Employment Tribunals
in England, Wales or Scotland. The issues which he set out for his
determination were whether or not the Tribunal had jurisdiction by reference to
council regulation EC44/2001 (known as the “Brussels 1 Regulation”) or,
alternatively, whether the Claimant’s employment was within the territorial scope
of the Employment Rights Act 1996.
3.
The issues to be determined have to bear in mind the distinction to
which I drew attention in the case of Simpson v Intralinks Ltd
[2012] ICR 1343 at paragraph 8, quoting Louise Merrett’s article from page 355
and following in the Industrial Law Journal for 2010. She pointed out
that in all cases where there is a foreign element the question arises whether
the English court or Tribunal has jurisdiction to hear the case at all or
whether it should be heard in a foreign court. That she described as an issue
of private international law which she referred to as “international
jurisdiction”. If the Defendant is domiciled in a Member State of the European
Union that question has to be determined by applying the rules of the Brussels
1 Regulation. She observed that the third sense in which jurisdiction was
used, the second being immaterial for present purposes, was whether the court
or Tribunal had jurisdiction the Brussels 1 sense but the Tribunal had to
consider whether the claim fell within the territorial scope of the relevant
legislation; that she referred to as, “territorial scope”.
4.
So far as international jurisdiction is concerned section 5 of council
regulation EC 44/2001 provides for determining jurisdiction over individual
contracts of employment where the Defendant is domiciled in a Member State. The section, containing four articles, exclusively sets out the rules relating
to such contracts; see Glaxo Smith Kline & Anor v Rouard
[2008] All ER(D) 312 reporting the European Court of Justice’s conclusion
essentially to that effect.
5.
Article 19 provides:
“An employer domiciled in a Member State may be sued:
(i) in the courts of the Member State where he is domiciled or;
(ii) in another Member State;
(a) in the courts for the place where
the employee habitually carries out his work or in the courts for the last
place where he did so or;
(b) if the employee does not or did
not habitually carry out his work in any one country in the courts for the
place where the business which engaged the employee is or was situated.”
6.
The Article only applies if the employer is domiciled in a Member State.
7.
Article 60 provides for the meaning of domicile. It provides:
“(i) For the purposes of this regulation a company or other
legal person or association of natural legal persons is domiciled at the place
where it has its;
(a) statutory seat or;
(b) central administration or;
(c) principal place of business
(ii) For the purposes of the United Kingdom and Ireland
statutory seat means the registered office or where there is no such office
anywhere, the place of incorporation or, where there is no such place anywhere,
the place under the law of which the formation took place. …”
8.
Thus the Brussels 1 Regulation comes into force, as Mr Legard has
submitted, only where there is liable to be a conflict between the claims of
more than one Member State as to jurisdiction. If the employer is domiciled in
no Member State then so far as United Kingdom is concerned regard must be had
to ordinary principles of private international law.
The facts
9.
The facts as found by the Judge were somewhat sparse. He found that the
Claimant was employed by the Respondent, OMV Exploration and Production Ltd, as
an Operations Readiness and Assurance Manager. That company was a wholly owned
subsidiary of OMV Exploration and Reduction GmbH. That had a number of
subsidiaries amongst which was OMV (UK) Ltd with which the Claimant had
factually no connection. That conclusion has not been challenged.
10.
The Respondent was incorporated not in the UK but in the Isle of Man.
The Isle of Man is not itself a Member State of the European Union. The Judge
found that although that company had its registered office in the Isle of Man,
it was managed and operated from Vienna and had no connection with England, Scotland and Wales. The evidential basis for that finding is said by Mr Legard to be
insufficient.
11.
The Claimant applied for his job on a website which was not country
specific. He was interviewed by two people who were in Vienna at the time for
a post which was intended to place him as a resident in Sana in the Yemen,
working three weeks of each month there with one week off at home. He was to
be paid in Euros and the Respondent was to account to the relevant tax
authorities for the tax to be paid.
12.
The Claimant lives in Yarm in the north of England. He was due to start
work overseas on 14 November 2010 but he never did actually work in Yemen because of trouble in that country. Instead he went to and worked in Dubai where the Respondent subsequently developed its own office.
13.
He supervised a team of about six or seven people, two of whom were
based in England. During his time in this country, though supposedly on rest,
he did do some work in Hull. In total over the period for which he was
employed from November 2010 until February 2012, when his contract was
terminated, he worked a total of 20 full working days in the United Kingdom. There may have been some additional voluntary overtime in the taking and
making of telephone calls and emails to those whom he supervised.
14.
The contract provided expressly that it was based and founded in Manx
law and solely subject to the rules and regulations of the Isle of Man. It
contained an exclusive jurisdiction clause which provided that the Isle of Man courts had jurisdiction.
15.
Against that factual background, Judge Hesselberth found in paragraph 35
that the Respondent was domiciled in Austria. He did so in these terms:
“Brussels 1
I am persuaded by the arguments put forward by (Counsel for the
Respondent) namely that Article 19 does not confer jurisdiction on the
Employment Tribunal in the UK. Under 19.1 the claimant may sue the respondent
in a Member State in which the respondent is domiciled and I find that the respondent
is domiciled in Austria. The respondent is certainly not domiciled in the UK and the UK is not the respondent’s statutory seat nor the location of its central administration
nor its principal place of business.”
16.
At paragraph 36 he dealt with the alternative position for which Article
19(2)(a) provides. It is worth noting, as Mr Jones submits, that Article 19(2)
provides another choice for the employee as to where the employee may sue his
erstwhile employer. There are two alternatives to the place of domicile for which
19(1) provides. That in (2)(a) requires a finding as to the place where the
employee habitually carries out his work or the last place where he did so. As
to that Judge Hesselberth said:
“My finding is that under 19(2)(a) which provides that the
claimant may sue the respondent in another Member State if such State is the
place where he does, or did, habitually carry out his work. My finding is that
the claimant habitually carried out his work in Dubai. That is where
(eventually) he was contracted to work and he was managed there and his team
was located there and he spent the majority of his working time there. The
fact that he did some work in the UK when he was on leave does not persuade me
that he carried out his work habitually in any other place than Dubai.”
17.
Mr Legard complains that that finding of fact is a secondary finding, a
conclusion which requires to be based upon primary facts, but that it is
unclear which primary facts are relied upon. It is not appropriate, he argues,
for negative facts to be relied on to produce a positive conclusion. The fact
that the Respondent was, “certainly not domiciled in the UK” is no reason in itself for concluding, as he submits the Judge was here doing, that the
Respondent was domiciled in Austria.
18.
This conclusion by the Judge is a finding of fact. If, therefore, there
is material which supports it and if the conclusion has been reached by an
appropriate application of an appropriately identified test in law there would
be no error of law in the Judge’s conclusion unless in the circumstances it
could be said to be perverse.
19.
In response, Mr Jones submits that the Judge did not have purely the
negative to rely on. At paragraph 7 the Judge said this:
“7. The respondent, OMV Exploration and Production Limited is a
company incorporated in the Isle of Man but my finding on the evidence
available is that the respondent had no resource in the Isle of Man, it was
purely its place of registration and its management and operation was for the
most part carried out in Vienna, Austria. In short, the respondent had no
connection with England or indeed Scotland or Wales. Probably for tax reasons
it was registered in the Isle of Man but controlled from Vienna, Austria.”
20.
Prior to the hearing the Respondent had un-informatively said in its ET3
that the Tribunal had no jurisdiction. At a hearing in September 2012 it
became apparent that the Respondent sought to argue that within the Brussels 1 regulation it was domiciled in Vienna. Accordingly, having no connection with
the United Kingdom, it would be in Vienna that it could be sued under Article
19.1 unless the Claimant could establish a claim to a choice under 19(2)(a) or
(b).
21.
The matter was adjourned for some five weeks because the Claimant was
simply not ready to face that particular argument. When it returned to the
Tribunal he was met by evidence produced, and adopted in the witness box, by a
Mr Groeschner, who was the general manager for OMV Exploration and Production
GmbH. In paragraph 6 of his statement he said that the Respondent was fully
controlled by Vienna. He then expressed hearsay evidence that he had been
informed by the Head of Recruitment and Expatriate Services within OMV’s human
resources that:
“Although there is a general manager of OMV IOM all of the
administration work, for example drafting of employment contracts and the
setting up and management of the employment relationship is conducted through Vienna.”
22.
No questions were asked of him about the evidence that the company was
“fully controlled by Vienna” or the hearsay evidence that all of the management
and operation was through Vienna.
23.
To the contrary, the Claimant produced before the Tribunal, and waived
privilege for, legal advice which he had received, which included the author’s
view (which he attributed to the Claimant himself) that the office in the Isle
of Man was understood to be the registered office for corporate administration
purposes only, that the Claimant believed that the company had no bank account
or other assets in the Isle of Man nor any staff based there, and added at
paragraph 9:
“Mr Powell has advised us that the company’s main office is in
Vienna and that it also has offices in Aberdeen, London and Dubai.”
24.
Mr Legard in an attractive argument submits this was an insufficient
evidential basis. The burden of proof was on the Respondent; the Respondent
did not, though it might have done, call evidence from a director or employee
of the Respondent. The registered office being in the Isle of Man, one might
have thought that determined domicile. There was no evidence, he submitted, to
support a finding that its principal place of business was in Austria.
25.
The words used in paragraph 35 demonstrated an approach which was in
effect that if domicile was not the UK it had to be Austria without there being
any particular proof of it; moreover, this was the section of the Judgment in
which the Judge was supposed to set out his conclusions and the reader is left
wondering what factual matters led the Judge to the conclusion that this
Respondent was domiciled elsewhere than its registered office.
Conclusions
26.
The question of jurisdiction may be answered by the burden of proof
where there is truly no evidence, or evidence which in the Judge’s view is so
balanced as to admit of no probability one way or the other. Here there was
some evidence though slight. A Judgment has to be read as a whole. It is
rightly said that an Employment Tribunal Judgment is not to be read as finely
honed piece of legal craftsmanship, but that some infelicities may be
expected. Reading this Judgment as a whole with that in mind I read together
the findings of fact at paragraph 7 and the views expressed in summary at
paragraph 35.
27.
I am not surprised as I might have been in this case by the absence of
further evidence from the Respondent because, as Mr Jones points out, there was
no clue on the papers that the applicability of the Brussels 1 Regulation was
to be contested until the closing submissions of Mr Legard to the Tribunal.
The point then was raised but the evidence had by then been heard.
28.
The Judge indicated by using the words “on the evidence available” in
paragraph 7 that he did not have the fullest assistance from factual material. Nonetheless,
on the material which I have set out there seems to me sufficient to support
the conclusion to which he came. The observation that the Respondent was “certainly
not domiciled in the UK” is, as Mr Jones has pointed out and I accept, not a
reason in itself for finding what was the domicile. It recognises that the
question before the Judge was whether the UK Tribunal had jurisdiction or
whether it did not. For the application of Brussels regulation it would of
course have jurisdiction if the Defendant were domiciled in the UK.
29.
There had been a suggestion during the course of the proceedings that
the Respondent had conducted or did conduct some business in the United Kingdom but the Judge did not accept that. It follows that with evidence that this
Respondent had a nominal presence, for registered offices purposes, in the Isle
of Man and performed much of its operation or administration from Vienna,
supported albeit by hearsay statement and by the apparent acceptance of the
Claimant as reported to his Manx legal adviser, that is a sufficient basis to
conclude that Article 60(1)(b) or (c) and probably (1)(b) has been identified.
It would have been better if the Judge had specifically addressed and
systematically approached each of the criteria (1)(a)(b)(c) in Article 60 and if
he had reminded the reader of some of the material which underpinned his
conclusion in paragraph 35, but reading this Judgment as a whole I have
concluded he was entitled to reach the conclusion he did.
30.
As both counsel agree, and Simpson v Intralinks affirms,
Article 19 provides for a choice which is to be exercised by the employee,
though an employer bringing proceedings against an employee has by contrast no
choice; see Article 21. Therefore, if the Claimant could bring himself within
Article 19(2)(a) then notwithstanding the fact that he could sue the Respondent
employer in Austria, he would also be able to sue in the place where he
habitually carried out his work so long as for the purposes the Brussels
Regulation that was also in a Member State.
31.
The question where an employee habitually works is like that of
domicile, a question of fact and judgment. But here much depends upon the
scope to be given to the word “habitually”. In some contexts it is possible to
think that work may habitually be done in more than one place as where, for
instance, a peripatetic worker works in four or five separate locations in
rotation around the country. It might be possible in that context, if that is
the force to be given to the word “habitually”, to say that he works habitually
in each even though a sixth in which he had never or only rarely worked would
not so qualify.
32.
Accordingly, it is necessary to look to the assistance which the courts
can give as to the approach to be taken to the word “habitually” in the context
of Article 19. So far as that is concerned the Court of Justice gave its first
ruling in 1993 in Mulox IBC Ltd v Geels Case C125/92 [1993] ECR
14075. It held that the Convention as it then was had to be interpreted as
meaning that in the case of a contract of employment in pursuance of which an
employee performed his work in more than one contracting State the place of
performance of the obligation characterising the contract was the place where
or from which the employee principally discharged his obligations towards his
employer.
33.
In Rutten v Cross Medical Ltd Case C383/95 [1997] ICR 715
the court took the view that the expression referred to the place where the
employee had established the effective centre of his working activities. It
was the place where or from which he performed the essential part of his
duties, vis a vis his employer. Those are different phrases but all looking
for one candidate in answer to the question where does the employee habitually
work?
34.
The case of Koelzsch v Luxembourg [2012] QB 210 case
C29/10 concerned a heavy goods vehicle driver domiciled in Germany. He was engaged under a contract of employment with a company established under Danish law
which had no offices in Germany. The lorries which he drove were registered in
Luxembourg. His contract contained a clause conferring exclusive
jurisdiction on the Luxembourg courts. When a claim was brought in Luxembourg the question arose, not for the purposes of the Brussels 1 Regulation but for
the question of the Rome Convention, as to which system of law was the
applicable law to apply to his contract of employment.
35.
Article 6(2)(a) of the Rome Convention is in terms which are so similar
linguistically as almost to be indistinguishable from the provisions in the
Brussels 1 Regulation. Thus Article 6(2) which was then in consideration
provided:
“Notwithstanding the provisions of Article 4 [immaterial for present purposes] a contract
of employment shall in the absence of choice in accordance with Article 3 be
governed, (a) by the law of the country in which the employee habitually
carries out his work in performance of the contract, even if he is temporarily
employed in another country or, (b) if the employee does not habitually carry
out his work in any one country, by the law of the country in which the place
of business through which he was engaged is situated, unless it appears from
the circumstances as a whole that the contract is more closely connected with
another country, which case the contract should be governed by the law of that
country.”
36.
Focusing upon 2(a) raises the question of the scope of “habitually”.
The court noted the submission of the Claimant, the Greek Government and the
Commission that the words “habitually carries out his work” had been
interpreted in Mulox and Rutten in the context of
Article 19 of the Brussels Regulation as being the place from which the
employee mainly carried out his obligations towards his employer or had established
the effective centre of his working activities.
37.
The court observed at paragraph 41:
“41. The court has also been guided by those
principles in the interpretation of the rules of jurisdiction relating to those
contracts which are laid down by the Brussels Convention. It has held that in
a situation in which, as in the main proceedings, the employee carried out his
working activities in more than one contracting state, it is necessary to take
due account of the need to guarantee adequate protection to the employee as the
weaker of the contracting parties …
42. It follows that insofar as the objective of Article 6 of the
Rome Convention is to guarantee adequate protection for the employee, that
provision must be understood as guaranteeing the applicability of the law of
the state in which he carries out his working activities rather than that of
the state in which the employer is established. It is in the former State that
the employee performs his economic and social duties, and as was noted by the
Advocate General in … her opinion it is there that the business and political
environment affects employment activities. Therefore compliance with the
Employment Protection Rules provided for that country must, so far as is
possible, be guaranteed.
43. Consequently, in the light of the objective of Article 6 of
the Rome Convention it must be held that the criterion of the country in which
the employee “habitually carries out his work” set out in Article 6(2)(a)
thereof must be given a broad interpretation while the criterion of “the place
of business through which the employee was engaged” set out in Article 6(2)(b)
thereof ought to apply in cases where the court dealing with the case is not in
a position to determine the country in which the work is habitually carried
out.
44. It follows from the foregoing the criterion in Article
6(2)(a) of the Rome Convention can apply also in a situation such as that at
issue in the main proceedings where the employee carries out his activities in
more than one contracting State if it possible for the court sees to determine
the State with which the work has a significant connection.”
38.
It then returned to paragraph 45 to cite the Court’s case law, to which
I have already referred, and at paragraph 47:
“47. It follows from the foregoing that the
referring court must give a broad interpretation to the connecting criterion
laid down in Article 6(2)(a) of the Rome Convention in order to establish
whether the claimant habitually carried out his work in one of the contracting
States and, if so, to determine which one.
48. Accordingly in the light of the nature of work in the
international transport sector such as that at issue in the main proceedings,
the referring court must … take account of all the factors which characterise
the activity of the employee.
49. It must in particular determine in which State is situated
the place from which the employee carries out his transport tasks, receives
instructions concerning his tasks and organises his work and the place where
his work tools are situated. It must also determine the places where the transport
is principally carried out, where the goods are unloaded and the place to which
the employee returns after completion of his tasks.
50. In those circumstances the answer to the question referred
is that Article 6(2)(a) of the Rome Convention must be interpreted as meaning
that for the situation in which the employee carries out his activities in more
than one contracting State, the country in which the employee habitually
carries out his work in performance of the contract, within the meaning of that
provision is that in which or from which, in the light of all the factors which
characterise that activity, the employee performs the greater part of his
obligations towards his employer.”
39.
Although this authority relates to the Rome Convention and the question
at issue before me relates to the Brussels Regulation neither counsel contends
that the approach should be any different as between those two instruments
because of the slightly different context they address. Moreover, there was
considerable attention paid by the Advocate General in her opinion to the
question whether there should be a different approach and the conclusion was
that there should not.
40.
Accordingly, just as Mulox and Rutten were
relevant to help determine the outcome in Koelzsch so in my view
it is appropriate to regard Koelzsch as appropriate authority in
determining the scope of habitually carrying out work in the current case.
41.
Mr Legard argues that Koelzsch demonstrates a width of
approach, given the recitals to the Regulation, in particular recital 13 which
calls for the weaker party to be protected by rules of jurisdiction more
favourable to his interests than provided for by the general rules, a recital
which is specifically linked to employment contracts. The court seized of
determining where an employee habitually carries out his work should give
proper weight to where the interests of the employee lay. The response by Mr
Jones is that in the recitals the need for predictability was expressly
recognised (see recital 11). The section relating to jurisdiction over
individual contracts of employment laid down specific situations; an employee
had to come within Article 19(2)(a) or (b) if the employer was domiciled in a Member State if he were to escape the need to sue the Member only in the courts of the
State where the employer was domiciled. Here, he submitted, the finding of
fact was for the Judge. The Judge approached “habitually” looking for one
country alone. That was entirely consistent with Mulox and Rutten
and Koelzsch. It is implicit in the wording of Article 19 itself
with its reference in 19(2)(b) - “If the employee does not … habitually carry
out his work in any one country” - to one country, and required a Tribunal
applying the tests identified in those authorities to focus upon the main or
effective place of work. Here he asserted that was and could only on the facts
have been Dubai. I accept those submissions.
42.
The Judge set out in the last two sentences of paragraph 36 a number of
reasons for the finding he reached; they are a sufficient basis for the
finding. Accordingly, I am of the view that the Judge was entitled to hold
that the Respondent employer was domiciled in Austria and that the Claimant did
not habitually work in another Member State within the meaning of the
regulations. It follows that the Judge was right to hold as he did that the
Tribunal had no jurisdiction over the claim.
43.
Nonetheless he turned in any event to whether the claims made would have
fallen within the territorial scope of the jurisdiction. He concluded that
they would not. He said so again for reasons which are tersely expressed.
“38. Turning out of the territorial scope I find that the
Tribunal does not have jurisdiction to hear the claimant’s claim. I have
carefully considered the case of Lawson v Serco which I think is
now somewhat overtaken in the finding in Ravat v Halliburton.
39. For the sake of completeness applying Lawson v Serco
the claimant was not working in the UK at the time of his dismissal and the
exceptions to the usual rule do not apply namely that he was not a paid
peripatetic employee nor employed by a British employer for the purposes of
business conducted in the UK or in an extra-territorial British enclave.
40. Following the Ravat v Halliburton case and
accepting that the claimant had his home in the UK it is clear that the
respondent’s business was not based in the UK when the claimant was recruited
by the respondent, run out of Austria, engaged to work in Yemen initially but actually in Dubai. In reality there were almost no factors connecting the
claimant’s employment to the UK.”
44.
Counsel for the Claimant has invited me to give my views,
notwithstanding it is legally unnecessary for the determination of this appeal
to do so as to this finding; Mr Jones maintains a neutrality upon
instructions. I doubt that I shall be capable of adding much to the learning
which has come from three Supreme Court decisions and may yet be eliminated by
a fourth when Clyde v Bates Van Winkelhof is heard
by the Supreme Court though I am unsure as to the precise scope of the
petition. Nonetheless I shall say a few words about it, bearing Mr Legard’s
well taken point that the form of employment which the Claimant had here has in
these recent years of global enterprises become a much more regularly adopted
pattern. He was not a peripatetic employee as identified as a class by Lord
Hoffman in Lawson v Serco [2006] UKHL 3 nor was he an expatriate
employee in the sense of working abroad virtually full-time, with limited time
spent back in the home country on furlough. His employment pattern was very
similar to that addressed in Ravat v Halliburton as something of
an international commuter.
45.
The pattern of working some of the time in one country and much of the
time in another country brings with itself particular problems, not least in
knowing what employment law should be applicable to the situation.
46.
The test which the Judge sought to apply was identified by him in
paragraph 33 of his decision as being a “‘sufficiently strong connection’/principle”,
a “pattern which points quite strongly to British employment law as a system
with which (the claimant’s) employment had the closest connection.” There are
two strands there: one is that of “closest” connection, the other is “sufficiently
strong” connection. A distinction was drawn in the speech of Lord Hope, was
most clearly identified as such in the judgments in Clyde & Co v
Bates Van Winkelhof, between the classes of exceptional expatriate
cases which Lord Hoffman had first identified in Lawson v Serco.
As Lord Hope said at paragraph 28:
“28 It will always be a question of fact and
degree as to whether the connection is sufficiently strong to overcome the
general rule that the place of employment is decisive. The case of those who
are truly expatriate because they not only work but also live outside Great
Britain requires an especially strong connection with Great Britain and British
employment law before an exception can be made for them.
29. But it does not follow that the connection that must be
shown in the case of those who are not truly expatriate because they were not
both working and living overseas must achieve the high standard that would
enable one to say that their case was exceptional. The question of whether on
given facts a case falls within the scope of section 94(1) (Employment Rights
Act) is a question of law but is also a question of degree. The fact that the
commuter has his home in Great Britain with all the consequences that flow from
this for the terms and conditions of his employment makes the burden in his
case of showing that there was a sufficient connection less onerous. Counsel
for the employer said that a rigorous standard should be applied but I would
not express the test in those terms. The question of law is whether section
91(4) applies to this particular employment, the question of fact is whether
the connection between the circumstances of the employment and Great Britain
and with British employment law was sufficiently strong to enable it to be said
that it would be appropriate for the employee to have a claim for unfair
dismissal in Great Britain.”
47.
This test is one of sufficiently strong connection. It was repeated in
paragraph 33 in which Lord Hope was influenced by the intention of the parties
that the relationship should be governed by British employment law and by the
practice which the employer adopted, summarising:
“This all fits into a pattern which points quite strongly to
British employment law as the system with which his employment had the closest
connection.”
and in paragraph 35 in which he accepted a test of substantial
connection but thought it better if the Judge had asked himself whether the
connection was:
“Sufficiently strong to enable it to be said that Parliament
would have regarded it as appropriate for the Tribunal to deal with the claim.”
48.
The emphasis on the exceptionality of cases which Lord Hoffman might be
seen to stress in Lawson v Serco may be appropriate therefore for
the type of case with which that appeal was concerned. The international
commuter case, such as Ravat v Halliburton requires the approach
which Lord Hope adopted, providing at any rate that the commuter commutes from Great Britain, as did the Claimant here. None of the leading authorities though considered
a factual case in which the employer was non-British.
49.
In Duncombe & Ors v Secretary of State for Children, Schools
& Families No. 2 [2011] UKSC36, [2011] ICR 1312 Baroness Hale
adopted the principle later expressed by Lord Hope in Ravat at paragraph
8 observing:
“There is no hard and fast rule and it is a mistake to try and
torture the circumstances of one employment to make it fit one of the examples
given, for they are merely examples for the application of the general
principle.”
But later at paragraph 16, dealing with the combination of
factors which then inevitably had to be addressed she said at page 1317 D to E,
“First, as a sine qua non, their employer was based in Britain …”
50.
Neither counsel before me argued that that was stating a proposition of
law. It would be surprising given the circumstances in which she had adopted a
test in the application of which cases were examples to be determined on their
own facts if she had intended it to be taken in that way. As Mr Legard points
out, an employer may be German but a subsidiary of a company which is UK based which itself may be part of a wider international conglomerate. There is no short
and easy route to determining the question of application of the domestic
statute in a situation where all the factors have to be considered. That said,
there are always going to be some cases in which very little needs to be said
because the case so obviously falls either within (or more probably without)
the scope.
51.
The starting point which must not be forgotten in applying the
substantial connection test is that the statue will have no application to work
outside the United Kingdom. Parliament would not have intended that unless
there were a sufficiently strong connection. “Sufficiently” has to be
understood as sufficient to displace that which would otherwise be the
position.
52.
The factual features here relied upon by the Claimant are that the
Claimant himself resided in Yarm and was domiciled in the UK. He was recruited and interviewed whilst he was in the UK. He was obliged to have a
medical examination for the purposes of employment, that too was in the UK. The Respondent though not incorporated in the United Kingdom was incorporated in the Isle of Man which is a British crown dependency, and self-evidently very closely
geographically and socially related to the main island. The Claimant had
supervisory responsibilities for two UK based personnel. He paid tax and
national insurance to the UK tax authorities as well as, to an extent, those abroad.
His home country as defined in the Respondent’s tax guidelines was the United Kingdom. He spent some time working within the United Kingdom.
53.
The Claimant submitted therefore that it was simply inappropriate for
the Judge to be so dismissive of those factors which might argue that there was
a sufficiently strong connection. The contrary argument put by Mr Jones was
that the Judge was right to hold that there were almost no factors connecting
his employment to the UK. The Respondent’s business was not based in the UK, but as the Tribunal found in Austria and abroad. He was engaged to work in Yemen initially but actually worked in Dubai. That was described as his working time whereas his
time in this country was rest time. The contract was expressly governed by
Manx law. The remuneration was paid in Euros, not in Sterling. Exclusive
jurisdiction was given to the Manx courts. He was described and treated as an
expatriate.
54.
Given these considerations there are, as it seems to me, two questions: first
whether the Judge was entitled to come to the conclusion he did and secondly
whether he sufficiently expressed his reasoning for doing so. There is, having
said that, no formal Meek claim before me.
55.
As to the first of those two questions, I note the opening words of the
penultimate paragraph of Lord Hope’s speech in Ravat:
“As the question is ultimately one of degree considerable
respect must be given to the decision of the employment tribunal as the primary
fact finder.”
56.
Secondly, here there is no criticism of the terms in which the
Employment Judge addressed the test he was to apply. Thirdly, there was ample
material which was capable of justifying the Judge’s conclusion, in particular insofar
as the judgment of Lord Hope calls for a court to examine the connection, (a)
with the United Kingdom and, (b) with United Kingdom employment law. It is
clear that the employer here was not a British company: though I accept that
that factor is not conclusive it is nonetheless highly material. Secondly, the
work was performed abroad by agreement, and largely so in practice. Thirdly,
the Judge was, as I have found, entitled to conclude that the essential work
performed by the Claimant was performed extra-territorially. Fourthly, the
Judge did refer to a number of factors in paragraph 40. He made essentially
the points which I have just made.
57.
If his focus had been upon the second limb of Lord Hope’s approach, the
question of connection with English/British employment law, the Judge would
have been bound to take account of the fact that the parties had agreed that
that law would not apply to the contract. They had agreed that the courts of
the UK would have no jurisdiction. Those are relevant considerations.
58.
It will also be relevant in an appropriate case for a Tribunal to
consider whether the parties seriously contemplated that some other foreign
State whose systems may not have been well known or appreciated by either would
have jurisdiction, and whether the Claimant could effectively pursue his
employment rights arising under the contract or consequent upon it in that
jurisdiction.
59.
But all that said and, despite the shortcomings of the Judgment in
setting out detail, I would conclude that the Judge was entitled to come to the
conclusion he did. There is no obvious error of law in his conclusion. It
certainly cannot be said in this context to be a perverse conclusion.
60.
It follows that for those reasons, though expressed a little bit more
shortly than they might have been because this is a further head of appeal
which it is unnecessary to resolve, I would have upheld the Judge’s conclusion
on this point too.
61.
The grounds of appeal have not, as formulated, been answered in terms by
this Judgment but Mr Legard indicates that I have dealt with all the points
which he would have wished to raise. Despite, as I have said, the attractive
way in which the argument was put, this appeal must be and is dismissed.
