APPEARANCES
| For the Appellant |
MS M BEECHAM
(The Appellant in Person) |
| For the Respondent |
MR D SQUIRES
(of Counsel)
Instructed by:
Messrs Mishcon de Reya Solicitors
Summit House
12 Red Lion Square
London
WC1R 4QD |
SUMMARY
Sex Discrimination – Jurisdiction
Unfair Dismissal – Exclusions including worker/jurisdiction
Public Interest Disclosure
Employee based in Paris. Whether ERA and SDA jurisdiction excluded. SERCO; SAGGERS (EAT). Challenge to ET findings of fact. No error of law shown. Appeal dismissed.
HIS HONOUR JUDGE PETER CLARK
- This appeal raises two separate jurisdictional questions: first whether the Claimant, Ms Beecham's complaints brought under the Employment Rights Act 1996 are justicable in the London (Central) Tribunal; second whether that is so in her case of unlawful sex discrimination.
- The claims are brought against her former employer, the Respondent Technicolor Disc Services International Limited. A Chairman, Miss A M Lewsey sitting alone at a pre-hearing review held on 20 April 2006 found, by a Reserved Judgment with reasons promulgated on 15 May, that the Tribunal had no jurisdiction to entertain either claim. In the alternative, in the event that the Tribunal had jurisdiction, she would have ordered a stay of these proceedings pending determination of separate proceedings commenced by the Claimant in France against this Respondent arising out of her employment and its termination.
Background
- The Respondent is a UK company. It entered into a joint venture with Buena Vista Disney called the Esco Project, the purpose of which was to create an integrated IT system that would encompass all of Buena Vista's home entertainment product distribution throughout Europe. The project was based in Paris at the offices of the Respondent's parent company Thompson, a global media and entertainments service. The project commenced in 2002 and continued until after the termination of Ms Beecham's employment. Up to 100 staff worked on the project. They were recruited from around Europe, mainly from France.
- The Claimant commenced employment with the Respondent in February 2006 as a business process head in the Esco Project. Her home was in England, as it still is. Her letter of appointment dated 2 February 2004 states: "you will be based at Paris". Evidence as to her employment was given on behalf of the Respondent by Mr Ian Minchell, the Respondent's Vice President of Human Resources. The Claimant opted not to give evidence herself at the PHR. There was a bundle of documents before the Chairman. Based on the evidence before her the Chairman found that following a three-week induction course the Claimant spent Monday to Fridays working in Paris, returning home to Hampshire at the weekend. There was no evidence that the Claimant worked in the UK other than for a work meeting held on 11 March 2004 and on a couple of occasions for project reviews and updates with her manager.
- On 31 August 2004 she was given three months contractual notice of termination of the employment. She was then "on garden leave" until the effective date of termination of her contract on 30 November 2004.
The Tribunal decision
- Based on her findings of fact, the Chairman concluded:
(1) Applying the guidance contained in the speech of Lord Hoffmann in Lawson v Serco Ltd [2006] IRLR 289 the Chairman was satisfied that the Claimant was not working in Great Britain at the time of her dismissal. She was based in Paris. She was an ex-patriot employee, recruited in London and paid in Britain, but not a representative of a business based in this country, rather working in the Respondent's business in France. Accordingly the Chairman held that she had no jurisdiction to entertain the claims under the Employment Rights Act 1996. As to that I understand that the claims were both for detriment, under section 47(b) of the ERA, and also dismissal by reason of her having allegedly made public interest disclosures, that being a claim under section 103(a) of the Act, rather than under section 94 as the Chairman records at paragraph 26 of her reasons. That oversight does not seem to me to be material to her conclusions on what may properly be called the ERA claims.
(2) Applying the deminimis principle expounded by Burton J (then President) in Saggar v Ministry of Defence and other appeals [2004] AER (D) 54, she worked wholly outside Great Britain on the facts. Accordingly there was no jurisdiction to entertain her claim of sex discrimination by virtue of section 10(1) of the Sex Discrimination Act 1975. Her reasoning for the first finding is to be found at paragraphs 17 to 26 of the reasons, and for the second conclusion at paragraphs 27 to 32.
The appeal
- In this appeal Ms Beecham takes essentially three points. First she submits that, in postponing the PHR from a date in 2005 pending the outcome of Lawson v Serco [2006] ICR 250 in the House of Lords, the Tribunal did not treat the parties even-handedly. It is accepted that the application for a stay was made on behalf of the Respondent. However, I note first that no appeal was made to the EAT timeously against the stay orders made below and it is too late now for such an appeal to be entertained. But secondly and substantively it was the practice, pending the House of Lords' decision in Lawson v Serco, both for appeals in this Tribunal and cases in the Employment Tribunal to be stayed, so that even if I had jurisdiction to consider that complaint I would find that it had no substance.
- The second basis for the appeal relates to the ERA jurisdiction. As to that the Claimant submits, applying paragraph 38 of the opinion of Lord Hoffmann in Lawson v Serco, that she was the employee of a British company temporarily posted abroad for the purpose of a business carried on in Great Britain. That argument was considered and rejected by the Chairman below. The evidence given by Mr Minchell, which was materially accepted by the Chairman (see paragraph 6 of her reasons), was that the Esco Project was a part of the Respondent's business which was conducted in Paris. On that basis, it seems to me, it was open to the Chairman to reach the conclusion which she did. This case, in my view, can be distinguished from, for example, the case of a foreign correspondent of a British newspaper: see the facts in the case of Financial Times Ltd v Bishop [2003] UKEAT/0147, which is referred to at paragraph 38 of Lord Hoffmann's speech. In these circumstances it seems to me that the challenge to the ERA jurisdiction finding fails.
- Thirdly Ms Beecham challenges the finding that the Tribunal had no jurisdiction to consider her claim of unlawful sex discrimination. As to that she very fairly accepted an argument that if the Chairman was entitled to conclude, as she did at paragraph 12 of her reasons, that the Appellant worked only in the UK on three occasions (a work meeting on 11 March 2004 and a further couple of occasions, which were referred to by Mr Minchall in evidence), then that limited amount of work in this country would fall within the de minimis principle, which is explained by Burton J in Saggar v Ministry of Defence and other appeals, to which the Chairman was referred.
- What she has sought to do in this appeal is to challenge that finding of fact. It is right to record that she made an application to adduce additional evidence before the EAT which was not before the Tribunal Chairman. That application was dismissed by the Registrar and there was no formal appeal against that decision. Ms Beecham made a further application before me to put in evidence for the first time, a document at page 305 of the bundle; an expenses claim form which she submitted. I declined to admit that evidence: first because, in my view, it could have been put before the Employment Tribunal and, secondly because it seemed to me that it would not have had any significant effect on the outcome. The Chairman, at paragraph 12 of her reasons, considered some documentation relating to flights which the Claimant took during her employment, and also an expenses claim which included a mileage claim. That document at page 114 of my bundle is a similar expenses form for a different period to that which she sought to adduce at page 305.
- The difficultly she faced was in not giving evidence below. Had she done so, she could have told the Chairman where she drove in relation to those mileage claims, but there was no evidence from her. The Chairman was not satisfied on the material before her that those were miles driven on business in the UK. That was a finding that, on the evidence, was open to her.
- Thus this final ground of appeal fails because, in effect, it is an attempt to ask me to retry the case on evidence which was not but could have been led before the Tribunal Chairman. It is axiomatic that the jurisdiction of this Tribunal under section 21 of the Employment Tribunals Act 1996 is limited to correcting errors of law and not to hearing appeals on fact only. In these circumstances I am driven to conclude that there is no error of law shown in the Chairman's approach. Accordingly this appeal fails and is dismissed.
