Y Saloo v Interserve Learning and Employment (Services) Ltd [2022] EAT 22

[2022] EAT 22Case No EA-2020-000759-OO
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 5 August 2021
Before
HIS HONOUR JUDGE AUERBACH
Between
MR Y SALOOAppellantINTERSERVE LEARNING AND EMPLOYMENT (SERVICES) LTDRespondent
Ms L Millin (Direct Public Access Scheme) for AppellantRULE 3(10) APPLICATION- APPELLANT ONLYHearing Hearing date: 5 August 2021
JUDGMENT
[1]The claimant in the employment tribunal worked as a chemistry teacher at a college in the Kingdom of Saudi Arabia from the end of 2016. Following a non-renewal of his contract at the end of 2019, he presented a claim form claiming unfair dismissal against the respondent, a limited company called Interserve Learning and Employment (Services) Limited. That company entered a response defending the claim, including submitting that the claimant was not employed by it but by a different company, ESG Saudi Arabia LLC (“ESG”), a company registered in the Kingdom of Saudi Arabia (“KSA”), and submitting that the tribunal did not have territorial jurisdiction to consider the claim, as well as denying the claim on its merits.[2]The claimant seeks to appeal a decision of the employment tribunal, Employment Judge T R Smith, arising from a hearing at Leeds on 12 and 13 August 2020, at which the claimant appeared in person and the respondent was represented by counsel. In the course of that decision, the judge determined, for the reasons that he gave, that the claimant was not employed by the respondent but was employed by ESG, and that he was not in any sense de facto employed by the respondent. The judge also concluded that there was no territorial jurisdiction to entertain the claim and he dismissed it. All of that was set out in a reserved judgment and reasons subsequently sent to the parties.[3]The claimant made an application to the employment tribunal for a reconsideration in a letter of 8 September 2020. I do not need, for the purposes of what I have to decide today, to go through all the matters that he raised in that letter to the employment tribunal, save to note that one of them was that he asserted that the judge was the chairman of the board of PNE Group, that one of PNE Group’s clients is Royal Bank of Scotland, which part-owns the respondent; and the claimant asserted that this gave rise to a conflict of interest that ought to have been disclosed.[4]In a letter of 28 September 2020, the claimant was notified that the judge had considered his application for a reconsideration, which was refused. That letter included the following:
“Further, Judge Smith is not the chairperson of Project North East, having resigned his directorship well before hearing the claimant’s case.”
[5]That prompted two emails from the claimant, one of which observed that the judge had been a director of PNE Group at the time when his claim was first presented on 3 January 2020. A further letter from the tribunal, written at the direction of Judge Smith, of 29 September 2020, stated:
“Judge Smith was allocated to your case one or two days before the Preliminary Hearing. He had ceased to have an involvement with PNE well before he was aware of your claim.”
[6]The Claimant presented a notice of appeal. The grounds contained in it were settled by Ms Millin of counsel. In tandem with this, the claimant pursued a complaint to the regional employment judge in relation to his allegations of actual or apparent bias on the part of Judge Smith. A letter from the regional employment judge (“REJ”) of 27 October 2020 indicated that the REJ was expressing no view on the allegation of actual or apparent bias, which was not a matter that could be dealt with through the complaints process, and that it must be challenged (if at all) by an appeal to the EAT. He dismissed that aspect of the complaint in that letter.[7]The original proposed grounds of appeal were, in summary, fourfold: that the tribunal had erred by treating Mr Brown as an expert witness; that it had been wrong to ignore the claimant’s evidence; that it had failed properly to weigh in the balance factors on the claimant’s side; and that it had failed to consider whether s94(1) Employment Rights Act 1996 applied. Those proposed grounds were considered on paper by HHJ Barklem not to be arguable. The claimant then sought a rule 3(10) hearing, which has come before me today.[8]In the run-up to the hearing, the claimant emailed the EAT on 7 July 2021 indicating that he was applying to amend his notice of appeal, to add certain further proposed grounds, which he set out, including the ground of bias or apparent bias. Various documents were attached to his letter. Reference was made to a further letter from the REJ, of 6 July 2021, responding to a letter from the claimant of 10 May 2021. In that letter, the REJ said that he had dismissed the complaint of judicial misconduct on 27 October 2020 and that the claimant’s letter of 10 May gave REJ Robertson no reason to reopen the matter; and, if the claimant wished his letter of 10 May to be treated as an application to EJ Smith to reconsider his decision, he should write confirming that by return.[9]There was a further letter of 14 July 2021 from the REJ included in my bundle, responding to a letter from the claimant of 13 July 2021, indicating that he (the REJ) could not provide any information about Employment Judge Smith, and referring to the possibility, in the event that the claimant’s appeal was successful, of a direction being requested of, or made by, the EAT remitting the matter for consideration by a different judge.[10]More recently, in the run-up to today’s hearing, a skeleton argument drafted by Ms Millin was tabled, as were draft amended grounds of appeal, which took the original grounds of appeal attached to the notice of appeal and added proposed additional paragraphs raising the proposed ground of bias or apparent bias. At the start of the hearing this morning, Ms Millin, who has appeared on the claimant’s behalf today, confirmed that I could and should disregard the claimant’s application of 7 July, as it had been superseded by the draft amended grounds prepared by her, and that document contained all of the grounds or proposed amended grounds that she, on the claimant’s behalf, was seeking permission to pursue to a full appeal hearing today.[11]I should say, before I turn to those grounds, a little more about the tribunal’s decision, although it should be referred to for its full content. At the start, the tribunal identified that the issues were agreed and set out in an earlier order of Judge Wade of 8 April 2020. That included who employed the claimant, whether it was the respondent or ESG that employed him, whether he was de facto employed by the respondent, and the territorial jurisdiction issue.[12]The tribunal addressed matters to do with the evidence and the conduct of the hearing, including that it heard from Mr Brown, a partner with Addleshaw Goddard (Middle East) LLP, and Mr Sawle, a manager, on behalf of the respondent, and from the claimant on his own behalf, and that the claimant had also put in a written statement from a Mr Sosnowy, but he was not called to give evidence or be cross-examined.[13]The tribunal identified that, during the course of the claimant’s employment, Interserve PLC was placed into administration and its assets and liabilities transferred to Interserve Group Limited, a company wholly owned by Interserve PLC’s lenders. It also identified that both the respondent and ESG were subsidiary companies, initially of Interserve PLC and, following the transfer of assets, of Interserve Group Limited.[14]The tribunal also explained that the term “Iqama” referred to a residency permit issued in the Kingdom of Saudi Arabia and, arguably, required by a person to be able to work there.[15]After summarising the submissions, the tribunal set out findings of fact divided into sub-topics: first some general findings under the heading “Introduction”, then detailed findings under the heading “The Contractual Documentation” and, after that, further detailed findings under the heading “The Working Arrangements”, then on the topic of “Management”, then on the topic of “Policies” and then on the topic of “Myinterserve/DPA/emails”. There was then a section headed “The ‘fraudulent’ contract and access to legal rights in the KSA” and again further findings were made under that heading. Then there were further findings under the heading “The Claimant’s connections and the UK Government”.[16]The tribunal then came to a section headed “Conclusion and Discussion” and addressed first the question of who was the claimant’s employer, coming, for the reasons it set out, to the conclusion that his employer was ESG and also that he was not de facto employed by the respondent.[17]The tribunal then turned to consider whether there was a sufficiently strong connection to the United Kingdom to enable the claimant to pursue his claim in the employment tribunal, citing Lawson v Serco Ltd [2006] ICR 250, Dhunna v Creditsights Ltd [2015] ICR 105, Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] ICR 1312 and Ravat v Halliburton Manufacturing and Services Ltd [2012] ICR 389. After listing factors that favoured the respondent and that favoured the claimant, the tribunal also considered the question of whether the claimant would or might have a remedy available to him in the Kingdom of Saudi Arabia. Mr Brown had given evidence to the effect that he would, but the tribunal said that, even if it was wrong to accept that evidence, and the claimant was right that he had no rights in the KSA, that did not assist him, as it did not constitute exceptional circumstances, and the competing merits of the relevant legal systems had no part to play in the exercise.[18]In answering the sufficiency-of-connection question, the tribunal cited a further authority, Hamam v British Embassy in Cairo EAT/0123/19. The tribunal then referred to a further authority that had been cited to it: Lodge v Dignity in Dying and others UKEAT/0252/14, which it distinguished on its facts. The tribunal came to the conclusion that the claimant, in the weighing exercise, had not shown an exceptionally strong connection to the United Kingdom and there was no territorial jurisdiction.[19]I turn now to consider each of the proposed grounds of appeal and whether any, all or none of them is sufficiently arguable to be permitted to proceed to a full appeal hearing. I will take the matter of the application to amend to add the ground of bias or apparent bias, and the merits of that proposed ground, last, particularly as Ms Millin has made the point in oral submissions this morning that she submits that its merits are informed by a consideration of the other proposed grounds.[20]I deal first with the ground that the tribunal acted wrongly or perversely in treating Mr Brown as an expert witness. Ms Millin submits, correctly as such, that, in order to be able to rely upon the evidence of a witness as expert evidence, a party in the employment tribunal, as in the civil court, requires the permission of the tribunal. She referred to the recent decision of the EAT in the Morgan [2020] ICR 1043 case. She said that the tribunal had erred by treating Mr Brown as an expert even though the respondent had never applied, still less been permitted, to call him as an expert as such.[21]The contribution that Mr Brown’s evidence made to the tribunal’s decision, and what the tribunal made of it, can be seen in para. 13 of the tribunal’s reasons. The judge observed at 13.2 that he found Mr Brown to be a credible and knowledgeable witness who could be regarded as an expert. He referred to Mr Brown properly drawing to the tribunal’s attention that there was no concept of judicial precedent in the KSA, and saying that, in his experience, it was therefore not always possible to reach a conclusive interpretation on how a point of law would be determined. The tribunal viewed this as adding to his credibility.[22]The tribunal accepted from his evidence that an Iqama was technically required for a person to work in the Kingdom of Saudi Arabia, but it went on to accept his evidence that, in his practical experience, visas were used by international companies and foreign nationals if an Iqama could not be obtained. The tribunal also noted that Mr Sawle gave evidence to similar effect; and the tribunal concluded that the method used to employ the claimant, whilst not optimal and technically in breach of the law, was actually used fairly frequently in practice.[23]The tribunal went on to accept Mr Brown’s evidence that the claimant would in practice have had access to KSA labour law had he sought to bring a claim there. As I have said, later in its decision, however, the tribunal said that, even if it was wrong to accept Mr Brown’s evidence in that regard, the point did not assist the claimant on the territorial jurisdiction question.[24]The claimant, by this proposed ground – and Ms Millin confirmed this – does not object to the tribunal having allowed the respondent to call Mr Brown as a witness of fact or having considered his evidence on matters of fact. What was arguably wrong, it is said, was to permit his evidence, and to treat him, as an expert on matters of law, when permission had not properly been sought or granted for that. It is said that this placed the claimant at a disadvantage as, had the respondent applied for or been granted such permission in advance of the hearing, the claimant might have made an application to call an expert of his own.[25]Ms Millin is entirely right about the procedure that should be followed when seeking to rely on a witness as an expert. But, whilst the tribunal did in more than one place indicate that it considered that Mr Brown could be regarded as an expert, ultimately I am not persuaded that this proposed ground should be permitted to proceed to a full hearing. That is for the following reasons.[26]Firstly, it seems to me that, on a fair reading of his evidence and the reliance placed upon it and what the tribunal made of it, Mr Brown was in part giving evidence of fact. He was describing in particular what his experience in fact was of the practices followed in relation to companies operating in the Kingdom of Saudi Arabia employing and deploying people who did not have an Iqama notwithstanding that that meant that they were, under strict Saudi law, not permitted to work. That factual knowledge was plainly gained through his having practised as a lawyer in the field, but it was not evidence of an expert nature about the law as such. It was evidence of fact about what he said in practice went on.[27]Mr Brown’s evidence did go beyond that into areas that can fairly be regarded as evidence about the law, however, in two respects. The first concerned the question of whether it was a requirement of Saudi law as such, for a person to be permitted to work in the Kingdom, that they have an Iqama. On that, however, there was no dispute, and he agreed with the claimant about that. The second area concerned the question of whether the claimant would, had he sought to, have been able to have access or recourse to the Saudi courts. I think it is certainly arguable on the claimant’s behalf that this was not purely evidence of fact, and had a component of expert evidence on the law or the legal practical administration of justice, in Saudi Arabia, which is the sort of question on which the tribunal would be assisted by expert opinion. To that extent, there is some force in the contention that the respondent’s witness should not have been treated as an expert who could give evidence on that question, when there had not been a proper process of permission for expert evidence and an opportunity for the claimant to call his own expert.[28]However, ultimately, I have concluded that, despite this, this ground should not be permitted to proceed to a full hearing, because the tribunal found in terms, and decided that, even if it was wrong to accept Mr Brown’s evidence on this point, this did not affect the outcome. Further, its reasons for saying that appear to me to have been cogent and not arguably wrong. In particular, the tribunal correctly cited Hamam v British Embassy in Cairo, which itself in turn refers to the earlier authority of Dhunna v Creditsights Ltd, which established that whether an individual would have effective recourse to a remedy in the jurisdiction where they worked is not a relevant consideration. I therefore conclude that, even if there was an arguable error on the tribunal’s part in this regard, it did not arguably undermine its decision on this point, which was determined properly on the alternative basis that I have described.[29]I turn then to the second proposed ground of appeal, which is to the effect that the tribunal was wrong to ignore the claimant’s evidence. In both the original and the draft amended grounds of appeal, this proposition is put forward in very general terms. It is said at para. 11 that the tribunal decided to ignore the evidence of the claimant, including the written evidence regarding the correct employer of the claimant, and relevant written documents which carried either the name of the respondent or the respondent’s parent company.[30]This ground does not appear to me to be arguable. There was very detailed consideration of the contractual documentation by the tribunal at para. 8, which, broken down into 18 sub-numbered paragraphs, occupies almost two pages of its reasons. The tribunal looked at the letter of offer of employment. The tribunal considered the details on the footer of that letter. It looked at the actual contract which the claimant signed and made a number of points about that, including that the contracting party was identified as ESG, and other points about its contents in relation to various matters, including policies, pay, tax, governing law and so forth. It considered the material it had relating to renewals of the contract by ESG and the termination of the relationship, including the contents of the severance agreement, which was specifically identified as an agreement between ESG and the claimant, and it considered there a point that the claimant made about the particular company number and registered office address also appearing on the notepaper.[31]Elsewhere, the tribunal considered in detail the points that the claimant made about a number of other communications of various kinds that he had from other companies within the same group.[32]As I have described, these various sections of the decision were detailed and comprehensive and it is not suggested that any of the factual matters relied upon by the claimant were omitted from consideration in the decision as a whole. At most, what can be said is that the tribunal did not list every single point that the claimant had made, when summarising the factors that favoured the respondent and those that favoured the claimant at paras. 15.14 and following. But this was clearly an overview or summary of what had gone before, and I do not think it is realistically arguable that, in setting out that overview or summary, the tribunal had neglected to reflect on the matters that it had considered in such detail and with such care in the course of the body of its decision.[33]I turn then to the third ground, which is that there was a failure to weigh properly in the balance factors on the claimant’s side. This is largely covered in what I have already said in relation to the second ground. The tribunal set out in considerable detail not only all of the factors relied upon by the respondent but all of those relied upon by the claimant. It carefully considered each one in the course of its reasons and indeed, I would add, made observations periodically as it went along about whether certain factors were regarded by it as significant or weighing in the balance or not. Against that background, the concluding sections are a summary or overview of what the tribunal considered to be the key considerations relied upon by each side and there is no arguable error in the tribunal not, at that point, once again listing every single one.[34]I turn next to Ms Millin’s point – which, it seems to me, is the fourth plank of the original grounds of appeal – that the tribunal erred in law as it failed to consider whether s94(1) applies to the employment in question. In the course of her submission about this, Ms Millin also referred to the case of Ravat v Halliburton.[35]I do not see that any arguable error is raised here.[36]I interpose that a point not raised, but which might have been arguable, as such, is whether the tribunal was technically right to refer to rule 8(2)(d) of the Employment Tribunals Rules of Procedure 2013 as the source of what it had to decide, as I think it is arguable that that rule is concerned with the question of whether, in a case where there is territorial jurisdiction within the United Kingdom, and what is called “international jurisdiction”, the matter falls to be considered by the Employment Tribunal in England and Wales or in Scotland. But, leaving aside that this point was not actually raised, I do not think anything turns on it, because the tribunal clearly addressed and applied the law, in my view correctly, on the substantive question of territorial jurisdiction that it had to decide. It was clearly aware that the claim that the claimant was seeking to bring was one of unfair dismissal and it is well established that the same body of authority on the question of territorial jurisdiction applies to unfair dismissal claims as well as to other sorts of claim.[37]The tribunal correctly considered relevant authorities on that question, including correctly treating Lawson v Serco as the principal authority setting out the general approach, although it also referred to other more recent authorities, as I have noted, including Duncombe and Ravat. I cannot see that there is anything in Ravat to indicate that the tribunal arguably made an error in its approach to the law, nor in its approach to the application of the law. The tribunal correctly took the approach that this was a case where the claimant had to show some exceptional basis for saying that there was a strong connection with the United Kingdom that outweighed the presumption in a case of this sort against territorial jurisdiction. It seems to me that the tribunal properly weighed and considered all of the matters that were said to be relevant on either side, and reached a decision that it was properly entitled to reach.[38]Before I turn to the matter of the proposed amendment and the question of actual or apparent bias, I should raise and address one other point which I am not sure was strictly covered by either the original or the proposed amended grounds, but which Ms Millin did raise in the course of submissions. This was that she suggested that the tribunal had arguably treated the claimant unfairly by, as it were, holding him to the fact that he had elected to name as respondent Interserve Learning and Employment (Services) Limited. Specifically, the tribunal, having determined that he was employed by a different company, had not gone on to consider whether he should have had the opportunity to amend or otherwise seek to pursue a claim against that company.[39]I do not think there was any arguable unfairness to the claimant in this regard. It is not at all uncommon for laypeople who work for a company that is part of a group of companies to be confused, or to claim that there is uncertainty about which company or legal entity in fact employs them. It is not uncommon for laypeople simply not to appreciate even the significance of the difference between different limited companies in a group as a matter of law. It is not uncommon for laypeople who are uncertain of the position, or believe that the position was intrinsically unclear, to name more than one company or entity as a proposed respondent to their claim. However, none of those scenarios apllies in this case.[40]Although, for some reason, the copy of the claim form in my bundle is blank on page 22 and the first few pages following, what I do have is the particulars of claim that accompanied it, which are clearly headed identifying Interserve Learning and Employment (Services) Limited as the respondent. What is also clear, looking at that document, is that the claimant appreciated the distinction between different companies in the group, and indeed, in the particulars, made a number of points about that. On the face of it, it is clear that the claimant was asserting that that particular company was, in reality, his employer, and that that particular company was therefore the company against which he deliberately brought his claim. It was also part of his case that, because that particular company was his employer, that also strengthened his case on the territorial jurisdiction question.[41]A response was then properly entered by the company that he had in fact presented his claim against: Interserve Learning and Employment (Services) Limited. Further, that response flagged up in the very second paragraph of the grounds of resistance, the respondent’s case that the claimant was employed by ESG Saudi Arabia LLC and not by the respondent. This point was therefore clearly flagged up at an early stage. Further, as the tribunal in the decision with which I am concerned identified at para. 1, the agreed issues were set out in an order that had been made on 8 April 2020, including the issue as to who the claimant was employed by and whether he was employed by the respondent or by ESG, and the further question as to whether he was in some sense de facto employed by the respondent.[42]Plainly, the claimant therefore understood these distinctions, the point as to which company was the employer was live from when the grounds of resistance were put in, the issue had also been identified several months before the August hearing in an order made in April 2020, and indeed it is clear that the claimant argued his case on these very points in some detail at the August hearing. I do not think, therefore, there is any arguable unfairness in the tribunal’s approach in this regard.[43]I turn to the proposed amended ground of appeal raising the allegation of actual or apparent bias. Ms Millin submitted that the application to amend had been made promptly. The claimant had sought redress from the regional employment judge through the complaints procedure and, following the REJ’s letter of 6 July, had written to the EAT the very next day making an application to amend. He had done that as best he could as a layperson and it had then been rendered into proper form by Ms Millin when she again became involved in the matter in the run-up to the rule 3(10) hearing.[44]As to that, I observe that the allegation of bias was raised with the judge himself in a reconsideration application, which was rejected in September 2020. I appreciate that the claimant’s complaint to the REJ then followed, but the REJ’s letter of 27 October 2020 told the claimant in terms that the REJ did not accept that this was a matter that he could deal with under the umbrella of a complaint and that it fell to be raised, if at all, with the EAT.[45]I do not, therefore, accept that this proposed ground has in fact been raised promptly with the EAT. It appears that the claimant chose to seek to pursue the point further again with the REJ in the course of 2021, leading to the further correspondence from the REJ in July, but it seems to me that he certainly could have sought to raise it with the EAT very much sooner following the October 2020 letter from the REJ.[46]But, in any event, I have considered this proposed ground of appeal on its merits in the same way as I would have, had it been included in the original notice of appeal. The word used in the proposed ground of appeal is “bias” and no distinction is drawn there between actual or apparent bias, although most of the submissions that I have heard are directed at apparent bias. However, it is also suggested that the way that the judge actually dealt with matters in his decision was actually affected by what is said to be the judge’s connection with Royal Bank of Scotland. That appears to me to be an allegation of actual bias, and that is part of the reason why Ms Millin said that the proposed other grounds potentially had a bearing on the bias ground.[47]For the reasons I have given, I do not think any of the other proposed grounds are arguable. It seems to me that this was on its face a fair, conscientious, well-reasoned decision which considered very fully all of the claimant’s arguments and submissions, and gave them as much detailed consideration as it gave to those put forward by the respondent. I cannot see any arguable basis at all for an allegation of actual bias, if indeed it is sought to be advanced.[48]What certainly is sought to be advanced is an allegation of apparent bias applying the Porter v Magill [2001] UKHL 67 test. The essential factual basis for this – and it appears to me that these facts are not as such, disputed – is said to be as follows. The group holding company, Interserve PLC, went into administration in 2019 at a time when the claimant was still employed. Its assets were transferred to Interserve Group Limited as part of the administration process, a company controlled by various lenders, including Royal Bank of Scotland. The judge was, until 25 February 2020, a director of PNE, and Royal Bank of Scotland was one of the bankers of PNE and also involved in funding a particular project which PNE administered. Further details are contained in the various documents the claimant has sent to the tribunal in support.[49]I do not think it is arguable that the Porter v Magill observer would consider that these facts give rise to apparent bias on the part of the judge. That is for a number of reasons. Firstly, the judge had ceased to be a director of PNE in February 2020, and before he had any knowledge of, or involvement in the claimant’s matter. Although it appears that he dealt with some matter of case management in or around July 2020, even that was after he ceased to be involved with PNE. He had plainly ceased to be involved by the time he was assigned to hear, and came to hear, this particular hearing that took place in August.[50]Secondly, I consider that the Porter v Magill fair observer would regard the purported basis for inferring a risk of bias as simply too tenuous. It is not said that the judge worked for Royal Bank of Scotland or had any role or capacity within Royal Bank of Scotland himself. The link is the indirect one through the judge being a director of PNE and Royal Bank of Scotland’s involvement with that company. Nor is it said that the claimant worked for or had any direct involvement with Royal Bank of Scotland himself. The link is again the indirect one that he worked for a company, the parent of which had Royal Bank of Scotland among its lenders, and subsequently became part-owned by Royal Bank of Scotland. Royal Bank of Scotland does not, so far as I can see, feature in the substantive issues in this case at all. Further, Royal Bank of Scotland is a major banking group which – I can take judicial notice of this – must have involvement in numerous companies and organisations, as all the major banks do. This is not even a case when the bank in question is a niche operation where possibly it might be said that its role in both capacities was more worthy of note.[51]For all of these reasons, I do not think it is arguable that this aspect of matters gave rise to any apparent bias on the part of the judge. I note that in fact it was raised with, and considered by, the judge as part of the reconsideration application. I am not aware of any appeal from the reconsideration decision but, even if there had been such an appeal on this ground, I would have considered that the judge was not arguably wrong to reject the reconsideration application in that respect.[52]For all of these reasons, I do not consider that there are any arguable grounds of appeal in the original notice of appeal and, even if the proposed apparent or actual bias ground had been raised in the original notice of appeal, I would have refused to permit it to proceed as well. This appeal is therefore dismissed.

Cited in 13 later judgments

and 4 more of the most senior