Mr B Pejic v Storm Global Ltd and Ryanair DAC: 3202454/2023 and Others

EMPLOYMENT TRIBUNALS

Case No 3202454/2023

Between

Bosko PejicClaimant

(1) Storm Global LtdRespondent

Before

Employment Judge Cuthbert

Date 29 April 2025

JUDGMENT

[1]This is a Reconsideration Judgment following the Reconsideration request sent by the Claimant to the Tribunal on 21 May 2025 and sent to the Judge by the Tribunal on 10 June 2025.

[2]Under Rule 68 the Tribunal may reconsider any Judgment where it is in the interests of justice to do so and a Judgment under Reconsideration may be confirmed, varied or revoked.

[3]Under Rule 70 if the Tribunal considers there is no reasonable prospect of the Judgment being varied or revoked the application for Reconsideration must be refused. This reflects the public interests in the finality of litigation.

[4]The Judgment I gave and approved on 29 April 2025 was a lengthy one. The request for Reconsideration is also lengthy.

[5]The Claimant’s application for Reconsideration was made within the required time limit. The Claimant’s application for Reconsideration is set out in ten separate headings which I deal with in turn. Fundamental Errors in Jurisdictional Analysis

[6]The Claimant contends I ignored his connections with the UK. That is not correct. I set out in paragraph 21 of my Judgment that he had the right to live and work in the UK. I considered where the Respondents were registered and how their operations worked. I acknowledged that the Claimant would operate in or out of UK airports at paragraph 44 and did not ignore evidence in this regard. Tribunal’s Failure to Allow Claim Amendment

[7]The hearing I dealt with, and the Judgment I gave, was not concerned with any amendment application. The matters I was asked to decide were set out by 1 of 3 Employment Judge Cuthbert at a Case Management Preliminary Hearing on 5 August 20024 and were set out at the start of my Judgment at paragraph 3. I noted at paragraph 5 that the Claimant agreed that I did not need to deal with any amendment application. Respondent’s Legal Gamesmanship and Tribunal’s Failure to Intervene

[8]The Claimant appears to suggest I permitted the Respondents to “manipulate pleadings”. I do not understand what is being argued here. I listened carefully to all arguments and do not recall any manipulation of pleadings. “Home Base” Misapplication

[9]I set out my conclusions on the Claimant’s home base in my Judgment. The Claimant’s Reconsideration request is an attempt to re-litigate his arguments on this matter. Material Errors in Rejecting the Claimant Flawed “Reasonably Practicable” Assessment and Procedural Unfairness and ACAS Certificate and Respondent Identity

[10]I set out in my Judgment at paragraphs 107 to 121 the relevant law and my findings on this issue. Service Issues and Procedural Bias

[11]The service issue appears to overlap with the two heads of argument above. The uneven enforcement of deadlines appears to be an argument about the Case Management Preliminary Hearing on 5 August 2024 and the Tribunal not sanctioning the Respondents for failing to meet deadlines in June 2024. These were not matters that I had to determine. Respondents’ Dishonesty and Contractual Breaches

[12]The matters as to the insurance held by the Respondents and the alleged “email mis-management” were not relevant to the matters I had to decide. “Associated Employers” Relationship Ignored

[13]The Claimant alleges I failed to consider the close relationship between the Respondents. I disagree with this and believe my Judgment set out that relationship. Material Errors

[14]The Claimant disagrees with my assessment of the nature of his relationship with the Respondents, siting it as an of “dual employment”. This was not the case he had advanced at the Case Management Preliminary Hearing before Employment Judge Cuthbert and as noted at paragraph 6 of my Judgment. His case was that 2 of 3 the Second Respondent was his employer and that was noted by Employment Judge Cuthbert. Summary

[15]I need to decide whether there is any reasonable prospect of a conclusion that variation or revocation of the original decision is necessary in the interests of justice. I have carefully considered the Claimant application for Reconsideration and the grounds he relies on. I have concluded there is no reasonable prospect of variation or revocation of my Judgment.

[16]The Claimant’s application for Reconsideration is therefore refused under Rule 70 (2). Approved by:

[1]The Tribunal does not have territorial or international jurisdiction to hear the claims.

[2]Claims number 3200263/24 and 3200411/24 were not presented within the applicable time limit. It was reasonably practicable to do so. The claims are therefore dismissed.

[3]The claims of unfair dismissal, wrongful dismissal and under the Agency Workers Regulations are struck out as against the First Respondent on the basis they have no reasonable prospects of success.

[4]The Claimant’s application for a preparation time order is refused. 1 of 33

REASONS

[1]This two day Public Preliminary Hearing came before me on 12 and 13 February 2025. The hearing was conducted by Cloud Video Platform. The Claimant represented himself. The First Respondent was represented by Counsel Mr Welch and the Second Respondent was represented by Counsel Mr Ogg. I heard evidence and submissions which finished at 3:30pm on the second day of the hearing. I needed time to deliberate and reach a decision and therefore reserved my decision.

[2]There were a substantial number of documents in this case. I had the following:a. A witness statement and chronology bundle of 53 pages.

b. A main bundle of 643 pages (“MB”).

c. A correspondence and Claimant’s documents bundle of 364 pages.

d. A supplementary bundle of 333 pages (“SB”).

e. An authorities bundle of 803 pages.

f. A written submission from the Claimant.

g. A skeleton argument for the First Respondent.

h. A skeleton argument for the Second Respondent.

i. An additional “revised” witness statement from the Claimant.

[3]The claims had been the subject of a Case Management Preliminary Hearing on 5 August 2024 before Employment Judge Cuthbert. Employment Judge Cuthbert listed this Public Preliminary Hearing to consider the following issues:a. Whether to strike out or impose a deposit order in respect of the Claimant’s claims because each of the claims fall outside the territorial legal instruments on which the Claimant relies (the Respondents “Territorial Jurisdiction Application”).

b. Whether to strike out or impose a deposit order in respect of the Claimant’s claims because the Tribunal does not have international jurisdiction to hear the claims pursuant to section 15C of the Civil Jurisdiction and Jurisdiction and Judgments Act 1982 (the Respondent’s “International Jurisdiction Application”). 2 of 33

c. Whether to strike out or impose a deposit order in respect of the Claimant’s complaints made within case numbers 3200263/24 and 3200411/24 because they were made out of time (the Respondent’s “Time Application”).

d. Whether to strike out or impose a deposit order in respect of the Claimant’s complaints of unfair and wrongful dismissal against the First Respondent (paragraphs 15-19 of the draft list of issues) on the basis that the Claimant, in his own amended pleadings, claims that he was employed only by the Second Respondent.

e. Further case management depending on the outcome of the above.

[4]The Territorial and International Jurisdiction applications were made by the Second Respondent in July 2024. The International Jurisdiction application did not apply to the First Respondent. The Time Application applied to both Respondents in respect of the whistleblowing claim number 3200263/24. The application to strike out the unfair and wrongful dismissal claims were pursued by the First Respondent only.

[5]On 8 January 2025 the Claimant made an application for a preparation time order and I was told the Tribunal had indicated it would be discussed at this hearing.

[6]At the outset of the hearing, I was informed by Mr Welch for the First Respondent that the Claimant had very recently made an amendment application and that he had already amended his claim as to who he was employed by. I did not have the most recent amendment application which I was told had been made only 2 days earlier on 10 February 2025. At the Case Management Preliminary Hearing in August 2024 the Claimant had said the first claim number 3202454/23 was pursued on the basis that the Second Respondent was his employer and this was noted by Employment Judge Cuthbert in his Case Summary. It was the Respondents’ position that I did not need to consider the amendment application or applications before dealing with the issues in this hearing because the way the Claimant was putting his claims was irrelevant as there was no international or territorial jurisdiction to hear them or if they were out of time. The Claimant agreed with this approach.

[7]We began the evidence at a little after 12 noon on 12 February 2025. The Claimant gave evidence first. The next witness was Diarmuid Rogers, Head of Flight Operations Base Management at the Second Respondent, followed by Claire O’Connor of O’Connor & Associates Ltd on behalf of the First Respondent.

[8]On 13 February 2025 Elizabeth Hoefsmit, CEO of the First Respondent, gave evidence. After evidence had concluded I heard submissions on behalf of all parties.

[9]The Claimant first went to ACAS for early conciliation in October 2023. There is an ACAS Early Conciliation Certificate, reference number R255054/23/07, naming the First Respondent for the period 8 October 2023 to 27 October 2023 (page 8 MB). On 14 December 2023 the Claimant issued his first claim, claim 3 of 33 number 3202454/23. He gave his home address as Andorra. He named the First Respondent as the Respondent. In box 2.5 when asked “If there are other Respondents… put their names and addresses here" he named Ryanair Holdings Public Limited Company and gave an ACAS Early Conciliation Certificate number of R255055/23/95. He gave his dates of employment as being 25 July 2012 to 15 September 2023 and his role as Airline Captain (MB pages 9- 30).

[10]The claims were of unfair dismissal and wrongful dismissal and for holiday and sick pay, for failure to provide a statement of employment particulars and for breach of the Agency Worker Regulations. This claim is termed “the Storm Claim”. In the MB at page 149 was an early conciliation certificate for the period 8 October 2023 to 31 October 2023, certificate number R255055/23/95 in the name of Ryanair Ltd, rather than Ryanair Holdings Public Limited Company. The Claimant had given this early conciliation certificate number when naming the Second Respondent in the ET1. In the Case Management Summary prepared by Employment Judge Cuthbert in August 2024 it was noted that the Tribunal had no copy of this ACAS Early Conciliation Certificate on record, albeit there was a copy of it in the MB page 149. Employment Judge Cuthbert noted that the precise early conciliation issue was not apparent to him as he too had seen the certificate in the bundle prepared for the hearing before him.

[11]On 17 January 2024 the Tribunal wrote to the Claimant rejecting his claim against Ryanair Holdings Public Limited Company under Rule 10 (1) (c) Employment Tribunal Rules of Procedure because there was no early conciliation number for that entity (MB page 31).

[12]On 31 January 2024 the Tribunal wrote to the Claimant referring to an application from him dated 25 January 2024 (such application was not in the bundle) for a reconsideration of the decision to reject the claim. The Tribunal informed the Claimant that Employment Judge Burgher had dismissed the application as the name of the Respondent on the ACAS Early Conciliation Certificate was different. He was informed of his right of appeal to the Employment Appeal Tribunal (MB page 33).

[13]On 16 February 2024 the Tribunal wrote again to the Claimant referring to an application by him dated 31 January 2024 for reconsideration (again that application was not in the bundle) and instructing him to “please lodge a new claim against Ryanair at the date when the correct Early Conciliation Certificate was received” (MB pages 35-36). All of the above concerned the first claim 3202454/23.

[14]On 3 January 2024 the Claimant went again to ACAS for Early Conciliation naming Ryanair Ltd and Storm Global Ltd as the prospective Respondents. The certificate number as regards Storm Global Ltd was issued on 5 January 2024, certificate number R100585/24/21 (MB 81) and the certificate for Ryanair Ltd was also issued on 5 January 2024, certificate number R100586/24/12 (MB 82). 4 of 33

[15]On 31 January 2024 the Claimant issued his second claim, claim number 3200263/24. He named Storm Global as the Respondent and at box 2.5 he named Ryanair Holdings Public Limited Company. This is a health and safety and protected disclosure detriment claim, known as “the WB claim” (MB pages 83-117).

[16]On 17 February 2024 the Claimant issued his third claim under case number 3200411/24. He named the Respondent as Ryanair and gave the Early Conciliation Certificate number from the certificate issued on 31 October 2023. This claim appears to replicate the first claim that was rejected as against the Second Respondent. This is known as “the Ryanair claim”. (MB pages 150-161).

[17]In cross-examination the Claimant was asked why he did not include the whistleblowing claim in his first claim. He said he was still considering at the time whether to bring a whistleblowing claim and whether in essence he had enough evidence to do so. He said it would be a lot of work to include it and it was only in discussions with ACAS when obtaining the Early Conciliation Certificates in January 2024, and when understanding time limits, did he decide to bring such a claim which he then presented on 31 January 2024. The Claimant said he believed he was a day late in going to ACAS for early conciliation but he believed he had presented that claim in time, as he understood he had one month after the ACAS Early Conciliation Certificate was issued to present the ET1.

[18]In evidence the Claimant said he had discussed time limits with ACAS and had looked at websites and had emailed the CAB for advice but could not recall whether they replied. He did not seek advice from a lawyer due to the costs associated with such advice.

[19]The Claimant was born in Serbia and he has Canadian citizenship. The Claimant’s position is that he had been engaged to operate an aircraft for the Second Respondent since July 2012. The Second Respondent’s position was that it has a commercial relationship with the First Respondent for the supply of contract pilots throughout Europe. It says it does not directly employ any of the pilots including the Claimant, and that it has no contractual relationship with them. It says the Claimant was from 2012 a self-employed contractor providing his services via the First Respondent. The First Respondent was incorporated in 2009 and provides ancillary support services to airlines and aviation workers, including payroll solutions to the Second Respondent, pilots and pilot service companies.

[20]From 2012 to 2017 the Claimant used a home address in Serbia and from 2017 to 2023 he had an address in Andorra. He continues to reside in Andorra. His address in Andorra is the address he has used on all Tribunal documents.

[21]There were emails in the MB pages 258-300 between the Claimant and a representative of the First Respondent regarding an advertisement the Claimant had seen for a captain role. In these the Claimant explains he does not have a UK passport, but rather a Canadian one. He explains he has the right to live and work in the UK. On 17 July 2012 the First Respondent’s representative informed the Claimant that his interview with the Second Respondent had been successful, 5 of 33 such interview being conducted by the Second Respondent at Stanstead Training Facility, and that he would be allocated to Barcelona as his base. The Claimant was asked to set up an Irish limited company and was directed to consultants C & C Consultants, described as “accountancy specialists in Ireland” with whom the First Respondent was working and who would be able to assist. On 25 July 2012 the Claimant set up a company Popovica Ltd and forwarded details of this to the First Respondent. A contract for services was issued with the parties being the First Respondent, Popovica Ltd and the Claimant (MB pages 533-542).

[22]Some months later the Claimant decided to set up a company in Cyprus to manage his social security and taxation more effectively. A contract for services was issued on 2 February 2013 with the parties being the First Respondent, Arealink Trade Ltd, a company based in Nicosia, Cyprus and the Claimant (MB pages 543-553).

[23]I heard evidence from Claire O’Connor of O’Connor & Associates Limited based in Dublin, Ireland. The business began with Ms O’Connor as a sole trader in 2010 and became a limited company in 2014.

[24]Ms O’Connor explained that O’Connor & Associates is an accountancy firm/tax consultancy and it specialises in the provision of accountancy services to contractors in the aviation industry. The firm acts for approximately 300 contractors in the aviation industry throughout Europe and Morocco.

[25]The pilots can be based anywhere the Second Respondent operates for their flying duties. Up until 2021 the pilots were subject to Irish tax law when they provided their services to the Second Respondent. The Irish tax law is income tax and not social security because, under the EU “home base rules”, a pilot pays social security contributions to the authorities of the country in which he is based, irrespective of his nationality or the nationality of his employer.

[26]Ms O’Connor told me that in response to the requirement to account for tax in Ireland, a contractor model was adopted. Under this model, the pilots operate independently as self-employed contractors. Accountancy firms like O’Connor & Associates were responsible for the incorporation and management of service companies for the pilots, including the appointment of a corporate secretary to each service company. The pilots were then appointed to the Irish service companies as PAYE directors and shareholders. As a PAYE director the pilots were in a position to meet the obligation to account for Irish income tax and would benefit from the advantages of self-employment.

[27]A three-way relationship was also formed in a contract between the service company, the pilot and the agency providing the payroll solutions to the Second Respondent, which in this case was the First Respondent (the “Contract for Services”).

[28]Ms O’Connor gave evidence that the Claimant first approached O’Connor & Associates on or around 17 July 2017 as he wanted to engage them as his accountants. 6 of 33

[29]O’Connor & Associates checked the Claimant’s base country (which in 2017 was Spain) and advised him to register for social security in that jurisdiction and asked the Claimant to sign a B10 form which is required in order to become a company director in Ireland and then filed this with the Companies Registration Office in Ireland (MB 574-576). In this document the Claimant gave a home address in Andorra.

[30]The Claimant also provided a copy of his National ID card in 2017 which confirmed his address in Andorra (MB page 621). The same address was provided on the Claimant’s tax returns in the period 2017-2023 (MB 622-642).

[31]O’Connor & Associates originally registered the Claimant as a director of Origin Aviation Limited on 17 July 2021, but it became apparent that because his base was in Spain, they needed to move him to Riverside Aviation Limited. Both Origin Aviation Limited and Riverside Aviation Limited are Irish incorporated companies (MB 554), however, Riverside Aviation Limited was also registered in Spain for social security purposes. It would be very costly to register Origin Aviation in Spain if it was not already registered there. As such, the Claimant was subsequently registered as a director of Riverside Aviation Limited on 21 August 2017 (MB 574-576) and remained appointed until 15 September 2023 (with the appointment to Origin Aviation Limited having been terminated on 7 September 2017).

[32]At pages MB 581-587 was a contract for services between MCG Aviation Ltd, Riverside Aviation Limited and the Claimant dated 6 April 2022. At clause 1 p, it provided “this Contract shall be governed by and construed in accordance with English law and each party agrees to submit to the exclusive jurisdiction of the English Courts as regards any claim or matter arising under this English contract”.

[33]The Claimant operated as a mobile pilot from 1 October 2022. Such pilots operate flexibly and can be requested to fly across the entire Ryanair network from multiple locations, and in return for such flexibility they receive additional pay. However, Ms O’Connor told me nothing would have changed from a tax perspective because the Claimant remained a resident of Andorra which is not in the EU. There is no double taxation agreement between Andorra and Ireland and the Claimant therefore remained within the Irish taxation system.

[34]The First Respondent would invoice the Second Respondent for the hours the Claimant worked and as part of the First Respondent’s payroll and administrative service. Riverside Aviation Ltd would pay the Claimant in Euros and the Claimant used a Swiss bank account.

[35]I have referred earlier in this Judgment to the Claimant’s base. Mr Rogers gave evidence about this.

[36]Mr Rogers told me that Regulation (EU) 2018/1139 of the European Parliament and the Council of the EU (known as “the Basic Regulation”) established the European Union Aviation Safety Agency (“EASA”). The EASA has statutory powers to make and implement airworthiness and safety regulations in the EU. The Flight and Duty Time Limitations (“FTL”) are set by EASA. The Irish Aviation 7 of 33 Authority (“IAA”) complies with regulations set by EASA, and the Second Respondent complies with the regulations set by the IAA. This applies to all pilots operating commercial aircraft which are registered in Europe (excluding the UK since Brexit, albeit the UK now has its own broadly similar legislation for aircraft registered in the UK) including the Claimant.

[37]Mr Rogers further explained that CS FLT.1 200 of the FTL states that “an operator (such as the Second Respondent) shall assign a home base to each crew member” (MB page 613). A home base is defined as “a single airport location assigned by a high degree of permanence” (MB page 612). It is a regulatory requirement that all pilots are assigned a base by the airline they are undertaking flight duties for, so that their flying hours can be monitored in light with Flight Time Limitations regulations – these govern the maximum number of hours that can be flown by commercial pilots in any 28 days and annually. During the time the Claimant provided services to the Second Respondent there were changes in the Claimant’s base as follows:a. From July to September 2012, the Claimant received mandatory training before he was able to operate the Second Respondent’s aircraft. Whilst the Second Respondent has access to various training locations and providers in Europe, training locations are assigned based on course availability to ensure spaces can be filled to maximise the cost efficiency of courses. The Claimant was assigned and completed his mandatory training in the UK.

b. From 8 September 2012 to 15 June 2021, after completing his mandatory training course and to allow him to operate the Second Respondent’s aircraft, the Claimant was based in Barcelona (MB pages 403-404 and 520).

c. From 16 June 2021 the Claimant was based in Palma (MB page 578).

d. From November 2021 the Claimant was based again in Barcelona (MB page 579).

e. From June 2022 the Claimant was based in Corfu (MB pages 355-366 and 580).

f. From October 2022 the Claimant was based in Dublin (MB pages 375- 290); and

g. From March 2023 up until the end of the Claimant’s contract he was based in Faro (MB pages 390-402).

[38]Mr Rogers explained that the Claimant’s bases were also noted in his “Zendesk” queries. Zendesk is a communication platform used by crew who operate the Second Respondent’s aircraft to contact their service provider or Flight Operations Manager responsible for their assigned base. The Zendesk queries were summarised at MB pages 603-607 and further details of these Zendesk queries were in the SB bundle as follows: 8 of 33a. SB pages 8-128 showed the rostering and operational queries raised whilst the Claimant was based in Barcelona. The Claimant confirmed that he was a “Barcelona based” captain in an email dated 8 November 2018 (SB page 21).

b. SB pages 129-159 showed the rostering and operational queries raised whilst the Claimant was based in Palma.

c. SB pages 160-204 showed the rostering and operational queries raised whilst the Claimant was based in Barcelona.

d. SB pages 205-233 showed the rostering and operational queries raised whilst the Claimant was based in Corfu.

e. SB pages 234-286 showed the rostering and operational queries raised whilst the Claimant was based in Dublin.

f. SB pages 287-333 showed the rostering and operational queries raised whilst the Claimant was based in Faro.

[39]On 11 June 2021 the Claimant was informed that his base was changing and effective from 16 June 2021 the Claimant’s base was Palma. (MB page 578). This was a temporary summer base change and therefore the Claimant was allocated a base back in Barcelona later that same year, effective 1 November 2021 (MB page 579). This base change is reflected in the Roster Report (MB page 366). The Claimant sent an email to the Second Respondent on 9 June 221 stating “I got the place (in Palma) and am happy to stay there for the summer, as planned (SB page 122).

[40]On 4-5 November 2021 the Claimant and the Second Respondent exchanged emails concerning his availability for rostering in November and December 2021 in the Christmas Period from Malaga. (SB pages 160-162). This was raised again on 21 November 2021 and the Claimant also suggested Seville and Barcelona for his available dates (SB page 169). The Claimant suggested Malaga again on 3 December 2021 (SB page 170).

[41]On 18 February 2022, the Claimant was informed that his base was temporarily changing and for the period 1 June 2022 to 30 September 2022 the Claimant’s base was Corfu (JB page 580). The Roster Report demonstrates that this resulted in a base change. (JB page 355). Following the temporary base reassignment the Claimant reverted to being based in Barcelona.

[42]On 10 April 2022 the Second Respondent emailed the Claimant offering him an opportunity to join Ryanair as a direct employee and sending him a contract of employment (MB page 210). The Claimant replied by email and declined the offer of direct employment , stating “based on my personal circumstances, being contract pilot is the best option for me… I do not live in Sapin and am flying part time. Therefore, I would appreciate if you consider keeping me as the contractor pilot” (MB page 609). The Claimant understood that this decision necessitated a 9 of 33 change of base and on 8 July 2022 the Claimant registered a ticket stating that staying in Barcelona as a contractor was not likely to be an option and that he will consider moving to “BUD which is a Buzz Contract” (BUD is Budapest and this is serviced by Buzz, not the Second Respondent) (SB page 207).

[43]As there was no opportunity for the Claimant to continue providing services in Spain as a contractor pilot, from June 2022 the Claimant moved bases to Corfu.

[44]It was not in dispute that there would be occasions where the Claimant operated in or out of UK airports, but the Second Respondent’s position is that this was only ever for very short periods as detailed below and he was positioned in and out of his base to the UK on each occasion (i.e. he would need to be repositioned on a flight into the UK in order to undertake a flight duty that commenced in the UK and then positioned back home again afterwards). It was the Second Respondent’s position that it is common for pilots (particularly mobile pilots) to operate duties across multiple locations to cover duties, for example where there is sickness absence or staff shortage. However, it was the Second Respondent’s position that at no time was the Claimant based in the UK and when he did operate duties to/from the UK, this was for short, irregular periods to cover operational demands during the period between 2011 and 2023 as detailed below:a. Between 25 July 2012 and 7 September 2012 and as noted above, the Claimant received introductory training in the UK.

b. On Wednesday 27 June 2018 the Claimant operated a flight into Stansted and departed from London Heathrow Airport the next day (MB page 412).

c. On 25 and 27 April 2019; 7 May 2019; 11 and 30 June 2019; 25 July 2019; 1 August 2019; 20 September 2019; 6, 23 and 24 October 2019 and 9 November 2019 the Claimant flew into and out of Stansted Airport (MB pages 443-446, 449 and 451-455).

d. Between 10 September 2019 and 12 September 2019, the Claimant was stationed at Stansted Airport and flew in and out of Stansted Airport on 13 and 14 September 2019 (MB pages 466-467).

e. Between 9 and 11 March 2021 the Claimant was stationed at Stansted Airport and flew in and out of Stansted Airport on 16 March 2021 and 27 May 2021 (MB pages 472-473 and 475).

f. The Claimant was stationed at Stansted Airport from 10 July 2021 to 13 July 2021 (MB page 478).

g. The Claimant flew in and out of Stansted Airport on 10 October 2021 (MB page 481).

h. The Claimant flew in and out of Stansted Airport on 10 January 2022 (MB page 486). 10 of 33

i. On 13 January 2022, the Claimant flew in and out of Manchester Airport (MB page 487).

j. On 5 February 2022 the Claimant flew in and out of Stansted Airport (MB page 487).

k. On 22 February 2022 the Claimant flew in and out of Manchester Airport (MB page 488).

l. On 1 May 2022 the Claimant flew in and out of Stansted Airport (MB page 492).

m. The Claimant was stationed at Stansted Airport between 22 and 24 September 2022 (MB page 500).

n. The Claimant flew in and out of Manchester Airport on 4 November 2022 (MB page 503).

o. The Claimant flew in and out of London Gatwick Airport on 15 December 2022 (MB page 505).

p. The Claimant flew in and out of Liverpool Airport on 15 December 2022 (MB page 505) and from 5 to 8 January 2023 the Claimant was stationed at Stansted Airport (MB pages 505-506).

q. The Claimant was stationed at Manchester Airport from 24 to 28 January 2023 (MB pages 506-507).

r. The Claimant was stationed at Liverpool Airport from 1 to 6 February 2023 (MB page 507).

s. On 4 March 2023 the Claimant was stationed at Manchester and flew in and out of Manchester Airport until 9 March 2023 (MB pages 508-509.

t. On 25 March 2023, 16 April 2023, 4 May 2023 and 6 and 13 June 2023 the Claimant flew into Stansted Airport (MB pages 510-514).

u. The Claimant flew into Liverpool Airport on 25 April 2023 (MB page 512) and to Manchester on 14 and 23 June 2023 (MB page 514).

[45]On 22 July 2022 the Claimant was informed that he was no longer going to operate from an allocated base and effective 1 October 2022, he was a NonBased (Mobile) Pilot. At JB page 590 is a letter from the First Respondent to the Claimant informing him of this. On the Roster Report from 1 October 2022 the Claimant is no longer allocated to a base in the first column and he instead has the initials “STM” which refers to him being a Storm Global mobile contractor (JB page 375). From this date onwards it is apparent from the Roster Report and he worked as a mobile pilot out of DUB, Dublin from 1 October 2022 (JB page 375) to 30 March 2023 (JB page 390) and then from FAO, Faro from 31 March 11 of 33 2023 until his contract was terminated on 15 September 2023 (JB pages 390 and 402).

[46]The First Respondent provides a pool of about 170 mobile pilots which have no permanent fixed base. They provide flexibility to the operation and support seasonal/additional requirements. I was told that the position of mobile pilot is a sought after position and it operates with a waiting list, due to the enhanced rate of pay. An “out of base supplement” applies as a per hour incentive payment. The advantages of operating as a mobile Captain also include the variety of location and work and advantageous rostering with a longer rest period.

[47]Whilst he was a mobile pilot the Zendesk queries made by the Claimant demonstrate that he was aware of his position as mobile pilot:a. On 20 October 2022 the Claimant stated that he had a “floating base” and that he would like to discuss that with Jason Whiteside of the Second Respondent (SB page 234). He noted that he would be flying out of Dublin 1-6 November 2022 in order to facilitate that discussion. Mr Whiteside replied that he should liaise with the Rostering team about “Mobile base options” (SB page 234). The Claimant also raised an issue with his Dublin Airport pass and the requirement to present police clearance from every country lived in since the age of 18 (SB page 235).

b. On 17 November 2022 the Claimant stated that he has been flying out of Dublin for the “last two weeks” (SB page 245). On 1 December 2022 he asked how long he would be operating out of Dublin and the Response from Jason Whiteside noted that the Claimant’s passport was stamped every time he landed in Dublin and enquired whether the Claimant could operate “ex UK” (SB page 251). In response the Claimant stated “Spain and Portugal would be good options for me. Even Morocco, or Italy. As for UK bases, I believe they will require UKAPTL from Jan 1, which I do not have” (SB pages 251-252).

c. On 6 January 2023 the Claimant’s base was still recorded as Dublin and he raised a complaint about the flying roster and that he was flying (on one day) from Stansted. He was informed by reply that the Stansted flight was removed, so it did not take place (SB page 259).

d. The Claimant also requested to be rostered outside of the UK and Ireland for two patterns in February 2023 to renew his passport (SB page 260).

e. There is also one reference to a flight between Glasgow and Birmingham in January 2023, but this appears to be a one off rotation (SB pages 261- 264).

[48]It is apparent from the Roster Report and Duty Plan that the Claimant has flown to and from UK airports from his non-UK bases. Additionally, there were 9 days where the Claimant was working on a UK rotation (flying in and out of Manchester while working as a mobile pilot at the end of January and beginning of February 12 of 33 2023) and this was recorded in his Duty Plan (MB pages 506-509) and Roster (MB pages 384-385).

[49]There was an email exchange between the Claimant and Jason Whiteside (Flight Operations Base Manager for the Second Respondent) (“Mr Whiteside”) on 5 December 2022 (MB page 521). Mr Whiteside asked the Claimant for his base preferences and his understanding was that the Claimant could “operate ex UK” which means that he could operate out of the UK. At the time of this exchange in December 2022, as a result of Brexit, the Second Respondent was actively trying to base any pilots who were eligible to operate from the UK in a UK airport. The Claimant responded that the UK would require a UK Airport Transport Pilot Licence (“ATPL”) from 1 January, which he did not have. The Claimant was given the opportunity to provide his base preferences, and the UK was not one of them. The Claimant stated “Spain and Portugal would be good options for me. Even Morocco or Italy”. Submissions

[50]I had written submissions from all parties and also heard oral submissions. I will briefly summarise the submissions here. All submissions cited case law which I shall deal with as appropriate later in this Judgment.

[51]On international and territorial jurisdiction, it was the Claimant’s position that the UK Employment Tribunal had jurisdiction to hear his claim based on 3 key factors:a. His contract provided for exclusive jurisdiction in the English courts.

b. His work, though performed internationally, was arranged and managed by the First Respondent, a UK based entity. He trained in the UK, frequently flew in and out of the UK and had a strong connection with the UK; and

c. The governing law of his contract was English law.

d. He had flown into and out of the UK on many occasions.

[52]The Claimant on his application for a preparation time order argued that the Respondents had acted throughout the proceedings in an unreasonable, vexatious and disruptive manner. He claimed the Respondents had failed to comply with an order to draft a list of issues by about a month, had sought to transfer the case to another jurisdiction, complained about the amount of documentation and complained that the First Respondent alleged gross misconduct against him.

[53]The First Respondent submitted that when the Claimant’s contract was terminated in September 2023 he lived and worked outside of Great Britain. It submitted the burden was on the Claimant to show he had “an especially strong” or “overwhelmingly closer connection” with Britain or the British law he is seeking to rely on compared with any other legal system. It was the First Respondent’s position that the choice of law clause was “not decisive”. The First Respondent 13 of 33 further submitted that the unfair and wrongful dismissal claims against it had no or little prospects of success given the Claimant’s position at an earlier stage of these proceedings was that the Second Respondent was his employer.

[54]On the Time Application the First Respondent contended the whistleblowing claim was out of time. The date of the last detriment relied on was 15 September 2023 and so the Claimant had until 14 December 2023 to present the claim. He presented it on 31 January 2024, after going to ACAS for early conciliation from 3 January to 5 January 2024. He had not shown it was not reasonably practicable to present in time.

[55]On the issue of a preparation time order the First Respondent contended that the Claimant had not alleged anything that met the test for such an order to be made.

[56]The Second Respondent set out the relevant case law in detail in its written submissions. In summary the Second Respondent’s position was that the Claimant’s base was not in the UK, but rather likely to be Andorra, and that any connection between the Claimant’s work and Great Britain was so weak that the Tribunal should not conclude it has jurisdiction to hear any of his claims. The Second Respondent also contended the WB and Ryanair claims were out of time and that it was not a case where the Claimant had shown that it was not reasonably practicable to present the claims in time.

[57]The Second Respondent also resisted the Claimant’s application for a preparation time order.

[58]I take this opportunity to thank all parties for their detailed and helpful submissions. The Law and Findings Territorial Jurisdiction

[59]At the Case Management Preliminary Hearing before Employment Judge Cuthbert the international and territorial jurisdiction issues were set out as follows: “Do the acts complained of in the claims fall within the territorial scope of:a. The Employment Rights Act 1996 (“ERA”).

b. The Employment Tribunals (Extension of Jurisdiction Order) 1994 (“the Jurisdiction Order”).

c. The Working Time Regulations 1998 (WTR)

d. The Civil Aviation (Working Time Regulations 2004) (CAWR) and/or

e. The Agency Workers Regulations 2010 (AWR). 14 of 33 Does the Tribunal have jurisdiction to hear the claims pursuant to s15C of the Civil Jurisdiction and Judgments Act 1982?”

[60]The Claimant has brought a number of different claims under different pieces of legislation. There are some claims brought under the Employment Rights Act 1996 (ERA). The ERA 1996 is silent as to its territorial scope.

[61]I was referred in submissions from the Second Respondent to the case of Jeffery v British Council

(2019) IRLR 125

(CA) and the following summary of the issues that arise when considering international jurisdiction and the ERA. “The question of the territorial reach of British employment legislation has notoriously given rise to problems in recent years and has produced a plethora of reported cases, including one decision of the House of Lords and two of the Supreme Court – Lawson v Serco Ltd

[2006] UKHL 3

[2006] IRLR 289

; Duncombe v Secretary of State for Children, Schools and Families (No 2)

[2011] UKSC 36

[2011] IRLR 840

; and Ravat v Halliburton Manufacturing & Services Ltd

[2012] UKSC 1

[2012] IRLR 315

. The effect of those decisions has been fairly recently reviewed in this Court in Bates van Winkelhof v Clyde & Co LLP [2012]. EWCA Civ 1207,

[2012] IRLR 992

, and CreditSights Ltd v Dhunna

[2014] EWCA Civ 1238

[2014] IRLR 953

. It will not be necessary in these appeals, and would indeed be likely to be positively unhelpful, to attempt a further comprehensive survey of that welltravelled ground. The position as now established by the case law can be sufficiently summarised for the purpose of the cases before us as follows:(1) As originally enacted, s 196 of the Employment Rights Act 1996 contained provisions governing the application of the Act to employment outside Great Britain. That section was repealed by the Employment Relations Act 1999. Since then the Act has contained no express provision about the territorial reach of the rights and obligations which it enacts (in the case of unfair dismissal, by s 94(1) of the Act); nor is there any such provision in the Equality Act 2010.

(2) The House of Lords held in Lawson that it was in those circumstances necessary to infer what principles Parliament must have intended should be applied to ascertain the applicability of the Act in the cases where an employee works overseas.

(3) In the generality of cases Parliament can be taken to have intended that an expatriate worker – that is, someone who lives and works in a particular foreign country, even if they are British and working for a British employer – will be subject to the employment law of the country where he or she works rather than the law of Great Britain, so that they will not enjoy the protection of the 1996 or 2010 Acts. This is referred to in the 15 of 33 subsequent case law as ‘the territorial pull of the place of work’. (This does not apply to peripatetic workers, to whom it can be inferred that Parliament intended the Act to apply if they are based in Great Britain.)

(4) However, there will be exceptional cases where there are factors connecting the employment to Great Britain, and British employment law, which pull sufficiently strongly in the opposite direction to overcome the territorial pull of the place of work and justify the conclusion that Parliament must have intended the employment to be governed by British employment legislation. I will refer to the question whether that is so in any given case as ‘the sufficient connection question’.

(5) In Lawson Lord Hoffmann, with whose opinion the other members of the Appellate Committee agreed, identified two particular kinds of case (apart from that of the peripatetic worker) where the employee worked abroad but where there might be a sufficient connection with Great Britain to overcome the territorial pull of the place of work, namely (a) where he or she has been posted abroad by a British employer for the purposes of a business conducted in Great Britain (sometimes called ‘the posted worker exception’) and (b) where he or she works in a ‘British enclave’ abroad. But the decisions of the Supreme Court in Duncombe and Ravat made it clear that the correct approach was not to treat those as fixed categories of exception, or as the only categories, but simply as examples. In each case what is required is to compare and evaluate the strength of the competing connections with the place of work on the one hand and with Great Britain on the other.

(6) In the case of a worker who is ‘truly expatriate’, in the sense that he or she both lives and works abroad (as opposed, for example, to a ‘commuting expatriate’, which is what Ravat was concerned with), the factors connecting the employment with Great Britain and British employment law will have to be specially strong to overcome the territorial pull of the place of work. There have, however, been such cases, including the case of British employees of government/EU funded international schools considered in Duncombe.

(7) The same principles have been held by this Court to apply to the territorial reach of the 2010 Act: see R (on the application of Hottak) v Secretary of State for Foreign and Commonwealth Affairs

[2016] EWCA Civ 438

[2016] IRLR 534

. I emphasise that this is not intended as a comprehensive summary of the effect of the decided cases. I am simply setting the background for the issues that arise in these appeals.” 16 of 33

[62]The principles developed by the courts have been applied to other rights than unfair dismissal under the ERA 1996, including unlawful detriment claims under section 47B of the ERA 1996 (see Smania v Standard Chartered Bank

[2015] ICR 436

. In Smania, the EAT concluded that the same test should apply to the whistleblowing provisions of the ERA 1996 as applies to unfair dismissal and there was no basis for applying a “looser” test. The EAT indicated that there would have to be a reasoned basis for treating certain rights within the ERA 1996 differently to others.

[63]In Lawson v Serco

[2006] UKHL 3

, the House of Lords held that the question of territorial effect is one of statutory construction: i.e. did Parliament intend the legislation to protect the employee in question? Lord Hoffman stated “ordinarily the question should simply be whether (“the Claimant”) is working in Great Britain at the time when he was dismissed and the general rule is that the place of employment is decisive” Lawson went on to say the general consideration is “whether the employment relationship had a closer connection with Great Britain (or perhaps with the British system of employment law) than with any other country or system of law”.

[64]Lawson looked at examples of the types of cases when employees might be within the legislative scope of the ERA.a. Where employees ordinarily work in Great Britain. The question is whether the employee was working in Great Britain at the time of their dismissal, or the matter complained of. A casual visitor to Great Britain would not come under the scope of the ERA. This is not the case for the Claimant in this case. He cannot be said to ordinarily work in Great Britain given the factual matrix set out above.

b. Peripatetic employees, such as airline pilots, cabin crew, international management consultants or salesmen. A peripatetic employee’s base should be treated as their place of employment, and therefore peripatetic employees will normally be protected if their base is Great Britain. This followed the approach in Todd v British Midland Airways

[1978] ICR 959

that “a man’s base is the place where he should be regarded as ordinarily working, even though he may spend days, weeks or months working overseas”. An employee’s base is normally where an employee begins and ends a “tour of duty”. What happens in practice should be considered, not just what the contract states. There may be a number of factors which cast light on where the employee is based, including:

(i) where the employee has their headquarters, or where their travels begin and end (this, in practice, is likely to be the decisive factor);

(ii) where the employee has their home;

(iii) where the employee is paid and in what currency; and

(iv) whether the employee is subject to National Insurance contributions. 17 of 33

[65]So, for a peripatetic employee, which may be analogous to the Claimant, the relevant issue is where his “base” is. In Lawson it was said the question here can be answered by reference to how the contract was in fact being operated at the time of the dismissal rather than with the terms of the original contract.

[66]In this case the Claimant flew in and out of various locations during his employment, latterly in and out of Faro. He was allocated this base as a pilot and under the EU “home base” rules where a base is allocated to a pilot. His home is in Andorra and he would travel to Faro for the purposes of his flying duties. The Claimant was paid in Euros and paid tax in Ireland and social security contributions in Andorra. He was not subject to National Insurance Contributions. His “base” cannot have been Great Britain.

[67]Employees who do not fit into the above categories, but who have “equally strong” connections with Great Britain and British employment law, might also be covered. The burden must be on the Claimant to show this connection.

[68]The Supreme Court In Ravat v Halliburton Manufacturing and Services Ltd

[2012] IRLR 315

, Lawson said: ”The question of law is whether section 94(1) 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.”

[69]Ravat established that where a Claimant lives and works abroad, as in this case, he must show “an especially strong connection” with Great Britain and the employment law protections in Great Britain before he can be allowed to pursue claims here.

[70]Caselaw has provided further guidance on the type of factors that may or may not be relevant when considering the strength of the connection between the circumstances of the employment and Great Britain and its employment legislation.

[71]Those factors include the following:a. Where the Claimant was recruited. In this case he was recruited and undertook initial training in the UK.

b. Where the Claimant is based. I was referred to a number of authorities on the issue of base and as follows:

(i) The case of Diggins v Condor Marine Crewing Services Ltd

[2010] IRLR 119

(CA), where Lord Justice Elias stated “In my view, if one asks where this employee's base is, there can only be one sensible answer: it is where his duty begins and where it ends.” 18 of 33

(ii) Also the case of R(Fleet Maritime Services (Bermuda) Ltd) v. Pensions Regulator

[2016] IRLR 199

, where Mr Justice Leggatt said “As applied to a peripatetic worker, the concept of a base is that of a place from which the worker sets off at the start and to which the worker returns at the end of a period when the worker is travelling in the course of their work.”;

(iii) Further the case of Yacht Management v Gordon

[2024] IRLR 561

(EAT) where Lord Fairley said “there is also no reason in principle why the employee’s home address cannot, as a matter of law, be her base if that is, on the facts, the place from which her duties begin and end.” He stated “It need not be an office or a headquarters or equivalent place. A rule that an employee’s base must be an office or a headquarters or equivalent place would risk falling into the error of assessing the location of a “base” not from the perspective of the employee but from the perspective of the employer”.

c. The parties’ choice of law. In British Council v Jeffery and Green v SIG Trading Ltd

[2018] EWCA Civ 2253

the Court of Appeal held that an express choice of law clause in a contract of employment could be a relevant factor in determining the strength of connection of the employment to Great Britain. It is however only one such factor to be considered.

[72]I conclude that the Claimant lived and work outside of Great Britain at the time his employment was terminated in September 2023. I then have to decide whether he had an especially strong connection to Great Britain. I accept that his strongest argument is the reference to the jurisdiction of the Courts of England Wales in his contract, however, as I have said above, this is just one factor. I also accept he flew on occasion into and out of the UK. It is however the case that he was not based in the UK. At the time his employment terminated he lived in Andorra and that was his base from which he would position to and from airports near his home to complete his duties. His links to Great Britain were weak whereas in contrast he had significant links to Andorra. I have already explained how his financial affairs were conducted.

[73]The Claimant pursues some claims under the WTR, CAWTR and AWR and case law suggests that, where domestic employment law gives effect to a right derived from EU law, the territorial scope of the domestic law should, if possible, be construed widely enough to give effect to the EU-derived right. In submissions I was taken to:• Bleuse v MBT Transport Ltd and another

[2008] IRLR 264

(EAT); and

• Duncombe and others v Secretary of State for Children, Schools and Families

[2010] IRLR 331

(CA); and

• Ministry of Defence v Wallis and another

[2011] ICR 617

(CA). 19 of 33

[74]Following the end of the Brexit transition period, it is also necessary to consider whether the principles established in these cases remain good law.

[75]In Bleuse the Claimant was a German national employed by a company registered in the UK but who did not work in the UK and brought unfair dismissal, unlawful deductions from wages and holiday pay claims in an employment tribunal. He could not satisfy the test for territorial scope set out in Lawson but contended that different principles should apply with respect to directly effective rights conferred by EU law. The EAT held: “In this case, absent any question of EU rights, I would accept that there is no reason to think that the territorial reach of these Regulations would be any different to the limitation found in the Employment Rights Act as interpreted in Lawson v Serco. However, in my judgment the implied limitation that might otherwise be deemed appropriate must be modified so as to ensure that directly effective rights can be enforced by the English courts. That is so even if on an application of the Serco principles, the base would not be Great Britain. The scope of the provision must be extended to give effect to the directly effective rights under EU law. That law operates as part of the system of domestic law and must be given effect accordingly. I accept the argument of Ms Kreisberger that if this were not done it would mean that the principle of effectiveness would not be satisfied: there would be no effective remedy for a breach of the EU right.”

[76]Bleuse was supported and extended by the Court of Appeal in Duncombe v Secretary of State for Children, Schools & Families

[2010] IRLR 332

[77]The Bleuse principle has been held to apply to both:(a) implied territorial limits, as in Bleuse itself, which concerned the WTR, which has no express territorial limitation; and

(b) express territorial limits. See Ministry of Defence v Wallis

[2011] ICR 617

, which concerned the express territorial limitation contained in section 10 of the Sex Discrimination Act 1975.

[78]When the Duncombe case reached the Supreme Court. Lady Hale said (obiter) in the Judgment: “33. I would therefore be inclined to agree with the tribunals and the Court of Appeal that Mr Duncombe and other teachers employed by the Secretary of State in European Schools abroad are covered by the Fixed-term Regulations. But the intended scope of the protection given by the Directive, and others like it, is a question of European Union law to which a uniform answer should be given throughout the Union. We have not been shown any authority which indicates that the answer is acte clair, however obvious we might think the answer to be. Had it been necessary to answer the question, therefore, it would probably be necessary to refer it to the European Court of Justice. 20 of 33 34. Were the answer to that simple question to be ‘yes’ it would then be necessary to give further consideration to the mechanisms appropriate to achieve that end. There was much discussion before us of whether the Fixed-term Directive had direct effect and whether the principle put forward by the Employment Appeal Tribunal in Bleuse v MBT Transport Ltd

[2008] IRLR 264

applied. There is no need to enter into that debate at present, but it would seem unlikely that, if the protection of European employment law is to be extended to workers wherever they are working in the area covered by European law, that protection should depend upon whether or not it gives rise to directly effective rights against organs of the state. A way would have to be found of extending it to private as well as public employment.”

[79]Turning to the position since Brexit, the Second Respondent argued that the Bleuse principle does not survive Brexit. Following the end of the transition period, the effect of the European Union (Withdrawal) Act 2018 (EUWA) was to convert and preserve EU-derived legislation, EU law and case law on EU-derived rights as retained EU law. Generally, employment tribunals cannot depart from retained EU case law including the general principle of effectiveness. After Brexit, the European Union (Withdrawal) Act 2018 (“EUWA”) provides for the continuation of the effect of general principles of EU law, which includes the principle of effectiveness. Section 6(3) of the EUWA currently provides for these purposes: “(3) Any question as to the validity, meaning or effect of any assimilated law is to be decided, so far as that law is unmodified on or after IP completion day and so far as they are relevant to it –(a) in accordance with any assimilated case law [and any retained general principles of EU law], and

(b) having regard (among other things) to the limits, immediately before IP completion day, of EU competences.”

[80]The Second Respondent contended the words in square brackets within s.6(3)(a),are applicable to the Claimant’s case, as follows:(i) The Retained EU Law (Revocation and Reform) Act 2023 (the “REUL Act”) makes amendments to the EUWA. For example, the nomenclature of ‘retained’ is replaced by ‘assimilated’ by section 5;

(ii) Section 4 of the REUL Act (‘Abolition of general principles of EU law’) provides for the repeal of the words in square brackets in section 6(3)(a) EUWA. Both sections 4 and 5 of the REUL Act are in force;

(iii) However, section 22(5) of the REUL Act states: “Sections 2, 3 and 4 do not apply in relation to anything occurring before the end of 2023.” T herefore, the words in brackets do apply to the Claimant’s case because the relevant events in the Claimant’s claim occurred before the end of 2023 21 of 33 (his contract was terminated in September 2023). Accordingly, for the purposes of his case, the words in square brackets continue to have effect.

[81]S 6(3) provides that the “retained general principles of EU law” have a role in interpreting the “validity, meaning or effect of any assimilated law”, but expressly only “so far as they are relevant to” questions relating to the same.

[82]The Bleuse principle requires legislation to be interpreted to allow those working in the EU to enforce EU-derived rights in the courts of any Member State. In the Second Respondent’s submissions the Bleuse principle is no longer “relevant” in ascertaining the territorial scope of domestic legislation under the terms of s6(3), because the Tribunal is no longer a Court within a Member State of the EU. The requirement of ensuring a system of mutual rights enforcement across Member State Courts is not relevant if the court in question is not in a Member State – and post-Brexit, Great Britain is not a Member State.

[83]Further the Second Respondent contended the fact that the Claimant resides in Andorra, which is not a Member State of the EU, means that the Tribunal should decide that the Claimant cannot avail himself of the Bleuse principle on the facts. It does not matter that he spent part of his time piloting aircraft flying between airports in the EU, given his country of residence and the limited time he spent in EU countries.

[84]Regulation 3 of the CAWTR provides the following definitions:(i) ““crew member” means a person employed to act as a member of the cabin crew or flight crew on board a civil aircraft by an undertaking established in the United Kingdom;

(ii) “employer” means an undertaking established in the United Kingdom by whom a crew member is (or where the employment has ceased, was) employed;

(iii) “employment” in relation to a crew member, means employment under his contract, and “employed” shall be construed accordingly;”

[85]The Second Respondent is not “established” in the United Kingdom. It is an Irish company. Accordingly, apart from the effect of the Bleuse principle, the Claimant’s claim against the Second Respondent under the CAWTR must fail because it falls outside the territorial application of the CAWTR.

[86]I have already found that the Claimant was based in Andorra, which is outside of the EU. Because of this, I agree with he Second Respondent’s submissions that the Claimant cannot avail himself of the Bleuse principles on the facts. Alternatively, and/or in addition, post-Brexit I agree with the Second Respondent that the Tribunal is not bound by Bleuse.

[87]Turning to the claims under the Jurisdiction Order, it was the Claimant’s position that the territorial jurisdiction of the Jurisdiction Order must be the same as the Lawson test under the ERA. That is why article 3(c) of the Jurisdiction Order states that a contractual claim in the Tribunal may only be brought if “the claim arises or 22 of 33 is outstanding on the termination of the employee’s employment”. It was clearly envisaged that any contractual claim brought in the Tribunal would be brought alongside other claims under the ERA or the Equality Act 2010 (in respect of which the Lawson test also applies).

[88]In Dickie v Cathay Pacific Airways Ltd [2004] I.C.R. 1733 (EAT) held: “The tribunal jurisdiction to entertain breach of contract of employment claims (limited to £25,000) precisely shadows the jurisdiction of the ordinary civil courts to hear such claims”. The EAT then proceeded on the footing that this is determined by the rules of service in the Civil Procedure Rules. This approach was then adopted by the Court of Appeal (

[2005] EWCA Civ. 599

[89]Article 3 contains no express provision as to extra-territorial jurisdiction. The purpose of Article 3(a) simply limits the types of claims which may be brought in the Tribunal to those which could be brought in the civil courts. The Second Respondent submitted the Tribunal should apply the Lawson test.

[90]I conclude the Lawson test is the correct test to be applied, given the claim under the Jurisdiction Order arises on termination of employment and sits alongside the unfair dismissal claim. My findings earlier in this Judgment as regards the claims under the ERA apply here. International Jurisdiction

[91]Post-Brexit, section 15C of the Civil Jurisdiction and Judgments Act 1982 (the “CJJA”) determines the question of the appropriate forum as between Great Britain and any other court in the world. In Stena Drilling PTE Ltd v Smith

[2024] IRLR 565

(EAT), Lord Fairley said: “The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations, 2019 added new sections 15C and 15D to the Civil Jurisdiction and Judgments Act, 1982 (‘CJJA’). For cases involving individual contracts of employment commenced after 31 December 2020, those sections represent the only route through which international jurisdiction may be established. They replace the grounds of international jurisdiction which formerly applied within the United Kingdom by virtue of the recast Brussels Regulation 1215/2012.”

[92]Section 15E(2) provides that regard is to be had of the decisions of the European Court concerning the Brussels Regulation, which the CJJA replaces.

[93]Section 15C of the CJJA provides: “15C.— Jurisdiction in relation to individual contracts of employment(1) This section applies in relation to proceedings whose subjectmatter is a matter relating to an individual contract of employment. 23 of 33

(2) The employer may be sued by the employee – (a) where the employer is domiciled in the United Kingdom, in the courts for the part of the United Kingdom in which the employer is domiciled, (b) in the courts for the place in the United Kingdom where or from where the employee habitually carries out the employee's work or last did so (regardless of the domicile of the employer), or (c) if the employee does not or did not habitually carry out the employee's work in any one part of the United Kingdom or any one overseas country, in the courts for the place in the United Kingdom where the business which engaged the employee is or was situated (regardless of the domicile of the employer). … (6) Subsections (2) and

(3) may be departed from only by an agreement which – (a) is entered into after the dispute has arisen, or (b) allows the employee to bring proceedings in courts other than those indicated in this section. (7) For the purposes of this section, where an employee enters into an individual contract of employment with an employer who is not domiciled in the United Kingdom, the employer is deemed to be domiciled in the relevant part of the United Kingdom if the employer has a branch, agency or other establishment in that part of the United Kingdom and the dispute arose from the operation of that branch, agency or establishment.”

[94]In Petter v EMC Europe Limited

[2015] EWCA Civ 828

, Lord Justice Moore-Bick held: “It was common ground before the judge and before us that a claimant will establish that the court has jurisdiction if he can show “a good arguable case” to that effect. In the present case that means a good arguable case that the court has jurisdiction under Section 5 of the Regulation. For these purposes it is accepted that “a good arguable case” means “having much the better of the argument” or “a much better argument than the defendant” on the basis of the material before the court.”

[95]I have already noted the Second Respondent’s position which is that it was never the employer of the Claimant. However, assuming the Claimant was an employee of the Second Respondent I consider the international jurisdiction position in this Judgment. 24 of 33

[96]Section 42A CJJA provides that for the purposes of s.15A-15E CJJA: “(2) A corporation or association has its domicile in the United Kingdom if and only if –(a) its registered office is at a place in the United Kingdom,

(b) its place of incorporation is in the United Kingdom (in a case where it has no registered office),

(c) the place under the law of which its formation took place is a place in the United Kingdom (in a case where it has no registered office or place of incorporation),

(d) its central administration is in the United Kingdom, or

(e) its principal place of business is in the United Kingdom.”

[97]Note of the conditions in s42 CJJA appear to apply to the Second Respondent. The Second Respondent is incorporated in Ireland. The Second Respondent carries out its main administrative functions from Dublin, Ireland, which is its principal place of business.

[98]The Second Respondent has operations in the United Kingdom at a number of airports, in particular at Stansted and East Midlands Airports. These operations fall within the scope of a “branch, agency or other establishment”.

[99]The following factual matrix needs consideration here:(i) The Claimant was dismissed at a meeting in Dublin, Ireland [M592];

(ii) On the Claimant’s account the “baggage loading” issue leading to dismissal related to an incident in Berlin Airport which is outside the UK; and,

(iii) The Claimant’s FTL Base was never in the UK and was in September 2023, Faro. On the Second Respondent’s case, he was in reality based in Andorra, at least whilst he was a mobile pilot.

[100]This means that the Claimant is not relying on matters that arise from any of the Second Respondent’s operations in the UK. Every act he complains of occurred outside the UK.

[101]I acknowledge the Claimant had occasional contact with branches of the Second Respondent in the UK, e.g. Stansted where he trained, but his claims do not concern anything that occurred at that location. 25 of 33

[102]Under s15C (2)(b) I have to consider where the Claimant “habitually carried out” his work.

[103]In Crew Employment Services Camelot v Gould

UKEAT/0330/19/VP

, it was held: “The test for determining the place where the employee habitually carries out his work is thus to determine the place where or from which the employee performs the essential duties of his service vis-à-vis his employer. Failing other criteria, that will be the place where the employee works the longest and it will only be otherwise where the subject matter of the dispute is more closely connected with a different place of work. That test is to be interpreted broadly. In considering this issue, the court or tribunal might consider various factors and must (for cases in the transport sector) consider(i) the place from which the employee carries out his transport- related tasks,

(ii) the place where he returns after his tasks, receives instructions concerning his tasks and organises his work, and

(iii) the place where his work tools are to be found.””

[104]I was also referred by the Second Respondent to Weber v Universal Ogden Services Ltd (C-37/00)

[2002] ICR 979

, which was cited in Gould, where the ECJ held: “In light of all the foregoing considerations, article 5 (1) of the Brussels Convention must be interpreted as meaning that where an employee performs the obligations arising under his contract of employment in several contracting states, the place where he habitually works, within the meaning of that provision taking account of all the circumstances of the case, is the place where he in fact performs the essential part of his duties vis-à-vis his employer. In the case of a contract of employment under which an employee performs for his employer the same activities in more than one contracting state, it is necessary, in principle, to take account of the whole of the duration of the employment relationship in order to identify the place where the employee habitually works, within the meaning of article 5 (1). Failing other criteria, that will be the place where the employee has worked the longest. It will only be otherwise if, in light of the facts of the case, the subject matter of the dispute is more closely connected with a different place of work, which would, in that case, be the relevant place for the purposes of applying article 51. In the event that the criteria laid down by the court of justice do not enable the national court to identify the habitual place of work, as referred to in article 5 (1), the employee will have the choice of suing his employer either in the courts for the place where the business which engaged him is situated, or in the courts of the contracting state in whose territory the employer is domiciled.”

[105]I have already determined in this Judgment that looking at the test in Gould the place from which the Claimant carried out his transport related tasks was Faro, (from his home in Andorra),the place where he returns after his tasks was Faro 26 of 33 (and then home to Andorra) and he received instructions from home in Andorra and his work tools (aircraft) were in Faro. I find s15C (2)(b) does not apply here.

[106]I turn now to s15C (2)(c) which applies where it has been determined that the employee did not habitually work in any one country. I have already found this not to be the case and that the Claimant lived and worked in Andorra. Whether Claims are in Time

[107]The two claims in respect of which this issue arises are the WB Claim (3200263/2024) and the Ryanair Claim (3200411/2024). I have set out the history of these claims earlier in this Judgment.

[108]Employment Judge Cuthbert at the Case Management Preliminary Hearing on 5 August 2024 set out the time limit issues as follows:a. Was any claim for unfair dismissal in the WB Claim or Ryanair Claim (section 111(2)(a) ERA):

(i) Presented before the end of the period of three months beginning with the effective date of termination (or such other period allowing for early conciliation); or,

(ii) within such further period as the tribunal considers reasonable in a case where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months?

b. Was any claim for wrongful dismissal in the WB Claim or Ryanair Claim (article 7 of the Jurisdiction Order): (i) presented within the time limited specified in article 7(a)-(ba) of the Jurisdiction Order (or such other period allowing for early conciliation); or, (ii) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.

c. Was any claim for a failure to provide a statement of written particulars of employment (section 11 ERA): (i) before the end of the period of three months beginning with the date on which the employment ceased (or such other period allowing for early conciliation); or, 27 of 33 the application to be made before the end of that period of three months.

d. Was any claim for holiday pay under the Working Time Regulations 1998 (regulation 30(2)): (i) before the end of the period of three months beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, 202 the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made (or such other period allowing for early conciliation); or, the complaint to be presented before the end of that period of three months.

e. Was any claim under the Civil Aviation (Working Time) Regulations 2004 (regulation 18): (i) presented before the end of the period of three months beginning with the date on which it is alleged– (i) that the exercise of the right should have been permitted, or (ii) the payment under regulation 4(2)(b) of the same should have been made (or such other period allowing for early conciliation); or (ii) presented within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

f. Was any claim for unlawful deduction of wages (section 23(2)-(4) ERA): (i) presented before the end of the period of three months beginning with the date of payment of the wages from which the alleged deduction was made, or the last in a series of such deductions (or such other period allowing for early conciliation); or (ii) where the employment tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of three months, that the claim was presented within such further period as the tribunal considers reasonable.

g. Was each detriment claim in the WB Claim presented: 28 of 33 (i) before the end of the period of three months (plus any extension for early conciliation) beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them (s.48(3)(a) ERA); or, the complaint to be presented before the end of that period of three months

[109]All of the time limits for consideration here are three months, unless the Claimant can show it was not “reasonably practicable” to have brought the claim within three months, then the Tribunal may extend time by such further period as the Tribunal considers reasonable.

[110]The burden is on the Claimant to demonstrate it was not reasonably practicable to present the claim in time and that he presented it within such further period as the Tribunal considers reasonable.

[111]When deciding whether it was reasonably practicable to present the claim in time the question is “one of fact for the industrial tribunal taking all the circumstances of the given case into account”, in which the Tribunal will “no doubt investigate what was the substantial cause of the employee’s failure to comply with the statutory time limit”: Palmer and Another v Southend-on-sea Borough Council [1984] I.C.R. 372 (CA). The Court of Appeal held that ‘reasonably practicable’ did not mean reasonable, which would be too favourable to employees, but meant something like ‘reasonably feasible’;

[112]In Asda Stores Ltd v Kauser EAT 0165/07 it was held that “the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”.

[113]The assessment of a further reasonable period requires “an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted” while having regard to “the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months” Cullinane v Balfour Beatty Engineering Services EAT.

[114]The last date on which the Claimant makes any allegations is the date of termination of his contract, 15 September 2023. The deadline for filing the ET1 was 14 December 2023 (subject to any extension by way of ACAS Early Conciliation period).

[115]I have already set out above the factual history of the engagement with ACAS. It seems the Claimant went to ACAS on the following occasions: 29 of 33a. 8 October 2023 to 27 October 2023 in respect of ‘Storm Global Ltd’, pursuant to EC Certificate R255054/23/07;

b. 8 October 2023 to 31 October 2023 in respect of ‘Ryanair Ltd’, pursuant to Certificate R255055/23/95; and then,

c. 3 January 2024 to 5 January 2024 obtaining two certificates:

(i) R100585/24/21 in respect of ‘Storm Global Ltd’;

(ii) R100586/24/12 in respect of ‘Ryanair Ltd’.

[116]Section 18A (1) of the Employment Tribunals Act 1996 states: “(1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. This is subject to subsection (7).”

[117]I was taken to Compass Group UK & Ireland Ltd v Morgan

[2017] ICR 73

where Simler J, the President, held “it will be a question of fact and degree in every case where there is a challenge (and we hope and anticipate that there will be very few such challenges) to be determined by the good common sense of tribunals whether proceedings instituted by an individual are proceedings relating to any matter in respect of which the individual has provided the requisite information to ACAS”.

[118]I was taken to Akhigbe v St Edward Homes Limited (

UKEAT/0110/18/JOJ

), where Mr Justice Kerr endorsed Compass, and gave an example of claims which did, and did not, concern the same matter, where only the latter required a second period of ACAS Conciliation: “49. A number of commonplace examples may help to illustrate the point. Claimants quite often bring a discrimination claim followed a little later by a victimisation claim; the latter claim founded on the protected act of bringing proceedings in the former claim. Does the victimisation claim relate to the same matter as the original discrimination claim? It is a question of fact and degree but the probable answer is yes; the "matter" is the dispute arising out of the employment relationship and the alleged discrimination and subsequent alleged victimisation.50. The same reasoning is likely to apply where, for example, a disability discrimination claim is brought relying on alleged detriments during employment; and then a few months later a further disability discrimination claim is brought relying on dismissal for reasons connected with the disability. In both examples, it should not in principle make any difference whether the second claim is made by amending the ET 1 presented in the first claim or by presenting a second claim in a separate ET 1. 30 of 33

51. Cases that fall the other side of the line would be those where the connection between the first and second claims is merely that the parties happen to be the same: such as, in Mr Akhigbe's example, a whistleblowing claim followed up with a claim for unpaid wages where the withholding of wages is put forward as a separate issue and not a connected issue such as a further detriment suffered as a result of the whistleblowing. In such a case, there is merit in a further conciliation opportunity that may help settle the unpaid wages claim.”

[119]The WB Claim was an entirely new claim. It is out of time. A separate ACAS Early Conciliation period was required for this which the Claimant did not begin until 3 January, when the primary time limit had already expired on 14 December 2024. The Claimant did not present the claim until 31 January 2024. The burden is on the Claimant to show it was not reasonably practicable to present the claim in time and that it was presented within such further period as the Tribunal considers reasonable. The Claimant was aware of his obligation in this regard as the legal test was set out by Employment Judge Cuthbert. He has not discharged the burden in this regard. If he could present the Storm Claim in time, he has not established that it was not reasonably practicable to present the WB Claim in time.

[120]I conclude it was reasonably practicable for the Claimant to present in time. The Claimant had already filed one claim, on 14 December 2023, namely the Storm Claim. The Claimant has given no reasonable explanation as to why he did not file the WB Claim earlier in time.

[121]The Ryanair claim is also out of time. It was not presented until 17 February 2024 and cites an Early Conciliation Certificate which was dated 31 October 2024. The Claims Against the First Respondent

[122]The First Respondent contends that the claims of unfair and wrongful dismissal and under the AWR as against it should be struck out as having no reasonable prospects of success. It points to the Claimant’s amended pleaded case which it states is unequivocal and pleads “The Claimant… was employed as an airline captain by Ryanair” (the Second Respondent). The First Respondent noted that Employment Judge Cuthbert had explained to the Claimant at the Case Management Preliminary Hearing that it was not part of his pleaded case that the First Respondent was his employer.

[123]The First Respondent contended that the Claimant’s case now appeared to be that he was employed by both Respondents. It was the First Respondent’s position that this was an impossible proposition given the caselaw that has developed demonstrating an injunction against having multiple employers in respect of the same work. The First Respondent also made the point that the AWR claim does not work if the Claimant now contends both Respondents were his employer as the Claimant cannot be both an employee and an agency worker in respect of the same work. 31 of 33

[124]I agree with the First Respondent’s position. The Claimant has set out his claim in his pleadings and he was clear as to who he asserted was his employer. The claims here as against the First Respondent have little reasonable prospects of success and are struck out. The Claimant’s Application for a Preparation Time Order

[125]The Tribunal has the power to grant a preparation time order under Rule 74.

[126]Rule 74 provides the grounds for making such an order as follows: “(2) …(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing or defending of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted.

(b) any claim, response or reply had no reasonable prospects of success.”

[127]The Claimant’s application appears to be based on the following:a. An assertion that the application relating to territorial / international jurisdiction has no reasonable prospect of success and/or that the Respondents are trying to transfer the case to another jurisdiction.

b. A complaint that the Respondents had delayed for a month in preparing a list of issues.

c. A complaint about the preparation of the bundles for this hearing on the basis that the Claimant has “never disputed” matters which are not specified in his application for a preparation time order.

d. A point about alleged differences between the Claimant’s dismissal letter and the respondent’s position in their grounds of resistance, i.e. the Claimant complains about the First Respondent is seeking to elevate an allegation of “severe misconduct into the more serious category of gross misconduct”.

[128]The Respondents resist the request for a preparation time order and contend the Claimant has not met the relatively high bar for the making of such an order. I agree with them. Firstly, I have found for the Respondents in relation to their contention that the Tribunal does not have territorial or international jurisdiction to hear the claims, such that this contention cannot be said to have no reasonable prospects of success. Secondly, I am not persuaded a delay in producing a list of issues has been in any way disruptive. This is a complicated matter requiring the input of three parties. Thirdly, whilst there were a lot of pages/bundles, I was 32 of 33 taken to many pages that were relevant to the issues I had to decide. Finally, the use of “gross” does not elevate the word “severe”. The language is fairly interchangeable.

Conclusion

[129]I have found the Tribunal does not have jurisdiction to hear the claims. If I am wrong, I have determined the WB and Ryanair claims are out of time and the claims of unfair and wrongful dismissal and under the AWR have no little reasonable prospects of success as against the First Respondent. No preparation time order is made. Approved by