Employment and Discrimination Tribunal

Transcription

1 Employment and Discrimination Tribunal Case number: [2017]TRE077 Date: 22/08/17 Before: Mr Michael Salter, Deputy Chairman Claimant: Respondent: Mr Guy Dickson Ocean Rig Offshore Management Limited For the Claimant: For the Respondent Advocate L Ingram. Advocate D Read. Reserved Judgment The Claimant falls outside of the limitation placed on the rights to claim protection from unfair and wrongful dismissal contained within Article 101 of the Employment (Jersey) Law 2003 and so this Tribunal has no jurisdiction to hear his claims. Reasons Introduction 1. These are my reasons for the above judgment, after hearing the submissions from the parties representatives I wished to consider my judgment and so, rather than have the parties wait around at Tribunal I reserved my decision. Background The Claimant s case as formulated in his JET1 2. The Claimant s complaint, as formulated in his Form JET1, presented to the Tribunal on 26th May 2017 and admitted on 30th May 2017 is, in short, as an employee of the Respondent he was unfairly dismissed and that that dismissal was wrongful.

2 The Respondent s Response 3. In its Form JET2, admitted on the 16th June 2017, the Respondent denied the Tribunal had jurisdiction to hear the claim and requested the matter be struck out under Rule 18 of the Employment and Discrimination Tribunal (Procedure)(Jersey) Order Case Management to date 4. The matter came before Deputy Chair Preston on 7th July 2017 when an Interim Hearing was set down for Thursday, 24th August 2017 to determine the jurisdiction of the Tribunal. Various case management directions were also given to ensure the matter was effective on the 24th August The Interim Hearing 5. The matter came before me for that Interim Hearing. The hearing had a one-day time estimate. 6. The Claimant was present and represented by Advocate Mr. L. Ingram. 7. The Respondent was present in the form of Mr. C. Strachan and was represented by Advocate Mr. D. Read. Particular Points that have arisen 8. At the outset of the day, as a matter of housekeeping, Advocate Read provide me with a signed affidavit of Mr. Strachan. The Affidavit had been served unsigned and there was some correspondence between the parties and the Tribunal about this leading up to the hearing. 9. At the request of Advocate Read, Advocate Ingram agreed that the Claimant would also provide his evidence in affidavit form as the evidence he had provided in advance of the hearing was in the form of a witness statement.

3 Documents and Evidence Witness Evidence 10. As would be expected in a case concerning interpretation and application of law I heard no witness evidence, however I had been provided with and had read in advance of the hearing the witness statement of the claimant and affidavit of Mr. Strachan. Bundle 11. To assist me in determining the application I have before me today an agreed bundle consisting of some [266] pages consisting of: Claimant s Documents (a) Claimant s skeleton argument; (b) Witness statement of the Claimant with attachment dated August 2016; (c) Article 101 of the Employment (Jersey) Law 2003 (as amended); (d) Decisions of: Wagner v Aviation Staffing Company Limited /09, Mackender and others v Feldia AG and others [1967] QB.D. 590; Compagnie Tunisiene de Navigation SA v Compagnie D Armement Maritime [1969] WLR 1138; Lawson v Serco [2006] ICR 250; Duncombe v Secretary of State for Children Schools and Families (No 2) [2011] ICR 1312; Ravat v Halliburton Manufacturing and Services Limited [2012] ICR 389; Bates van Winkelhoff v Clyde & Co LLP and another [2013] ICR 883; Dhunna v CreditSights Ltd [2015] ICR 105; Respondent s documents (e) Respondent s Skeleton Argument (f) Affidavit of Craig Strachan; (g) Extract from Employment (Jersey) Law 2003;

4 (ii) S196 Employment Rights Act 1996; (iii) Case Law: Wagner (as above); Ingham v Incat Technical Services Limited /09; Public Services Committee v Maynard [1996] JLR 343; Vilsmeier v AI Airports International and another [2014] JRC 257; Todd v British Midland Airways Ltd [1978] ICR Appended to the JET1 was a contract of Employment between the Claimant and Respondent dated 01 October 2016 and entitled Onshore Rotational Contract of employment which I have also considered. Submissions 13. I had written skeleton arguments from both parties which I had read in advance. Both parties supplemented their arguments orally. Since the skeletons are in writing it is unnecessary to repeat them here and they are referred to as appropriate in the conclusions. 14. Without wishing to do any injustice to either parties oral submissions they both sought to underline their written submissions and so I do not repeat their oral submissions here. The Facts 15. The Claimant was employed by the Respondent until his dismissal on 6th June 2017 which, he says was summary and without consultation. 16. The Respondent is registered in Jersey. The Respondent accepts the Claimant was an employee of it and that he was dismissed. However, it contends the Claimant was given notice of his dismissal and that his dismissal was on grounds of redundancy (Craig Strachan s Affidavit ( CSA ) paragraph 7) 17. The Claimant was employed on a rotational contract working 28 days on and then a similar time off work (see Claimant s Witness statements ( CWS ) paragraph 6). 18. His contract contained the following clauses (amongst others): 2 Place of Work

5 You will initially be assigned to Athens Corporate office on a rotational basis, which in line with local legislation may require applying for a Visa and may include submitting a Police Clearance. The Company reserves the right to assign/relocate you to any Ocean Rig location dependant upon business requirements 25 Governing Law This agreement shall be governed by and construed under laws of Jersey, and the parties to this agreement submit to the exclusive jurisdiction of Jersey in relation to any claim, dispute or matter arising out of or relating to this agreement 19. This contract was, in fact, the second contract the Claimant had with the Respondent. the first contained a choice of law clause which identified Greek law as the applicable law of the contract (CSA3). 20. At the time of his dismissal the Claimant was located in Athens (CWS7) although he did not hold residents status in Greece (CWS8). When issues were raised by him concerning his contract of employment he was repeatedly referred to jersey law (CWS10). 21. The Claimant never worked for the Respondent in Jersey or had cause to travel to jersey for work purposes. When he was not in Athens the Claimant travelled home to the UK (CSA4). The Claimant accepts he has never been physically present in Jersey for the Respondent (CSA19) 22. The Respondent has one employee in Jersey. It is rare for an other employee of the Respondent to be in Jersey at all (CSA16) The Law Jersey Legislation 23. So far as is relevant the Employment (Jersey) Law 2003 ( E(J)L ) states: 101 Application (1) This Law applies to an employment which requires the person to work wholly or mainly in Jersey.

6 24. The version of the E(J)L I have before me, and which was also provided by the parties and contained in the bundle, is the Revised edition 1 January Article 101 however was substituted by L.10/2013. However, the amendments were not thought relevant (i.e. it was not suggested the Tribunals in other cases involving the application of A101 Wagner and Ingham had a differently worded A101 before them). 25. It is uncontroversial, and so I do not set them out here, that Article 76(1) E(J)L provides this Tribunal with jurisdiction to hear complaints of unfair dismissal and Article 86 E(J)L provides this Tribunal with a limited jurisdiction to hear some claims for breach of contract. United Kingdom Legislation 26. I was referred to section 196 of the Employment Rights Act Authorities 27. I have set out the case law I was referred to by the parties above. Conclusions on the Issue of Jurisdiction 28. I took time assessing and looking through my notes as well as the written statements and documents, I considered with care the submissions, the legal provisions and guidance in case law. Having done this I have decided that Tribunal does not have jurisdiction to hear the Claimant s claims of unfair or wrongful dismissal. I do so for the following reasons. The Tribunal 29. The Jersey Employment and Discrimination Tribunal ( JEDT ) is a creature of statute governed by various Laws and Regulations including the E(J)L, the Employment and Discrimination Tribunal (Jersey) Regulations 2014, the E(J)L and the Employment of States of jersey Employees (Jersey) Law The JEDT has no inherent jurisdiction and can only deal with the closely defined claims it has been granted the power to determine.

7 The Application of Legislation 31. As was stated in Lawson at 254E: legislation is prima facie territorial. The United Kingdom rarely purports to legislate for the whole world 32. This point is no less valid if one substitutes the words States of Jersey for the United Kingdom in the quote above. The reasoning behind this statement is to ensure the comity of nations. 33. Jurisdictions can achieve international comity by express clauses within legislation limiting its application or by having limitations on that application implied into them by case-law. Either of these approaches would mean that territorial boundaries apply to employment rights; so whilst we speak of jurisdictional limits on Tribunals to hear the claim, it is actually the right itself which is limited and the Tribunal, which is a statutory creature, must apply that right to the full extent of that right whilst being conscious of the limits imposed or implied upon that right. A) Great Britain s Approach to Application 34. As both parties have referred me to various authorities emanating from Great Britain I will consider the position there before turning my attention to the position under Jersey law to see if there is any assistance I can obtain from the jurisprudence. 35. Section 196 of the Employment Rights Act 1996 ( ERA ) read: 196 Employment outside Great Britain (1) Sections 1 to 7 and sections 86 to 91 do not apply in relation to employment during any period when the employee is engaged in work wholly or mainly outside Great Britain unless (a) the employee ordinarily works in Great Britain and the work outside Great Britain is for the same employer, or (b) the law which governs his contact of employment is the law of England and Wales or the law of Scotland.

8 (2) The provisions to which this subsection applies do not apply to employment where under the employee s contract of employment he ordinarily works outside Great Britain. 36. This, clearly, excluded employees who ordinarily worked outside of Great Britain from enforcing the rights contained within the ERA. These rights included the right to claim unfair dismissal. However, this section was repealed by the Employment Relations Act 1999 and was not replaced with any alternative wording. 37. This lead the ERA to be silent regarding its territorial scope. This silence resulted in the Tribunals and courts in Great Britain seeking to achieve comity by defining the extent to which the ERA applied to employees working outside of Great Britain. Once it had defined this limit the courts and Tribunals then had to apply those limitations to the cases before them. 38. This question found its way to the Supreme Court in the matter of Lawson and the other authorities I have been referred to. In general terms, the cases subsequent to Lawson appear move away from any understanding that Lord Hoffman s three categories in Lawson are the entire category of worker covered by the legislation and instead move towards a more nuanced and fact sensitive assessment which appears to me to have resulted in two tests: firstly, where an employee worked partly in Great Britain and partly abroad, the question is whether the connection with Great Britain and British employment law is sufficiently strong to enable it to be said that parliament would have regarded it as appropriate for the employment Tribunal to deal with the claim (see for instance Ravat); secondly: where an employee works and lives outside of Great Britain, it will be more appropriate to ask whether his or her employment relationship has a much stronger connections both with Great Britain and with British Employment law than with any other system of law (see for instance Duncombe). 39. Whichever test applies, they both have their genesis in the lack of any express limitation being contained within the ERA. B) The E(J)L Approach to Application 40. The States of Jersey have, however, included within the E(J)L an Article expressly setting out limitations to the application of the Law. This is contained in Article 101 which I have set out above.

9 41. I therefore do not feel that I can take obtain useful guidance from the authorities of Lawson and those which came after it, as they were not addressing the construction of an express limitation clause, but were rather seeking to define the ambit of an implied limitation. 42. Equally, and with all respect due to my predecessors in this Tribunal, I do not gain assistance from the decision in Wagner, which whist referring to A101 says that it finds assistance from Lawson which it considers most helpful (see paragraph 7 of that judgment). It may be that the JEDT in Wagner were relying on Lawson for its interpretation of the base of a pilot (see for instance the reasoning in paragraph 7 and 9 of Wagner), if that is so then it is an issue that does not arise on the facts of the matter before me. 43. A101 also was considered by this Tribunal in Ingham. The facts of Ingham are different from the those in the matter before me however: Mr. Ingham travelled from the UK to Jersey on a weekly basis, working five days a week in Jersey and returning home at weekends. This changed owing to his wife s ill-health, as a result of which he travelled to Jersey five or six times a year. The JEDT concluded that he was still working wholly or mainly in jersey. It appears therefore to me that Ingham involves a factual determination rather than a pronouncement of construction of A101, and one which determined that case in the favour of the Applicant. C) Conclusion on the Jersey and UK Approaches to Application 44. As a result of the above, I consider myself unrestrained by Jersey authority on the application and effect of A101, and equally there is no persuasive influence from the authorities from Lawson to date which I can glean on the point of the Law s application. The E(J)L and Mr. Dickson 45. Having considered the relevant Law and authorities I turn to the case before me. 46. It is an agreed fact that Mr. Dickson never worked in Jersey and never came here for work. His contract specified he was assigned to Athens Corporate Officer. 47. I find therefore that his employment never required him to work in Jersey as is set out in A101.

10 48. The effect of this is, therefore, that the Claimant s case before this Tribunal must cease. The rights contained within the E(J)L, be they for breach of contract or for the right of unfair dismissal, are subject to a limitation on their application which the Claimant falls outside of. 49. If I am wrong on this, then I would have proceeded to assess whether Mr. Dickson could be said to have been working either wholly or mainly in Jersey. In conducting such an assessment I was urged by Advocate Read to consider the comments by Eveleigh LJ in Todd as being of assistance, albeit they are obiter comments in a decision which is of merely persuasive effect. 50. On the agreed facts, I would not have found that Mr. Dickson could be said to have either worked wholly or mainly in Jersey if I were to give those words their plain and usual meanings: on his own case, he never worked in Jersey at all. 51. In these circumstances, I cannot accept the argument from Advocate Ingram that I effectively have a discretion to permit the claim to proceed owing to the choice of law and choice of jurisdiction clause in the contract of employment. Conclusion 52. This being a statutory Tribunal I have no discretion when assessing its jurisdiction. Nor is there an inherent jurisdiction to fall back on. The Claimant falls outside of the limitations which A101 E(J)L places on the rights of unfair dismissal and wrongful dismissal. As such these claims are rejected on the basis that the Tribunal has no jurisdiction to consider them. Authorities Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016 Employment (Jersey) Law 2003 S196 Employment Rights Act 1996 Wagner v Aviation Staffing Company Limited /09 Ingham v Incat Technical Services Limited /09; Mackender and others v Feldia AG and others [1967] QB.D. 590

11 Compagnie Tunisiene de Navigation SA v Compagnie D Armement Maritime [1969] WLR 1138 Lawson v Serco [2006] ICR 250; Duncombe v Secretary of State for Children Schools and Families (No 2) [2011] ICR 1312; Ravat v Halliburton Manufacturing and Services Limited [2012] ICR 389; Bates van Winkelhoff v Clyde & Co LLP and another [2013] ICR 883; Dhunna v CreditSights Ltd [2015] ICR 105;