D Davidsen v IBM UK Ltd and others: 3312644/2022 and others
EMPLOYMENT TRIBUNALS
Case No 3312644/2022, 3307147/2023, 3312516/2023
Between
Dawn DavidsenClaimantIBM UK Ltd and othersRespondent
Before
Employment Judge StreetIn person for claimantMr Forshaw (instructed by counsel) for respondentDate 21 May 2025
REASONS
[1]There are currently three claims before the tribunal which have previously been ordered to be heard together. The claimant issued the first claim (claim number 3312644/2022) on 16 October 2022 against the first respondent only. The claimant then issued a second claim (claim number 3307147/2023) against the second respondent only on 20 June 2023. A third claim (claim number 3312516/2023) was issued by the claimant on 30 October 2022 against all four respondents identified above. Below I refer to those claims as “Claim 1”, “Claim 2” and “Claim 3” respectively.[2]The first respondent is the claimant’s UK employer (a point that the claimant does not dispute). The second respondent is the parent company of first respondent and domiciled in the US. The claimant now alleges for these purposes that the second respondent is her joint employer. The third and fourth respondents are employees of the second respondent who live and work in the US. Their connection to the claimant is explained in the facts set out below.[3]This matter has a protracted and regrettably complex procedural history, which I need only set out in outline. This is now the fifth preliminary hearing (“PH”) in this matter and rather than repeating the brief factual summary again, I refer to the summaries provided by both EJ Street and EJ Bedeau in the record of the earlier PHs before them.[4]By way of Claim 1, the claimant makes a large number of allegations of whistleblowing detriment contrary to s47B Employment Rights Act 1996 (“ERA”), victimisation, sex discrimination and unequal pay contrary to the relevant provisions of the Equality Act 2010 (“EqA”). The first respondent does not seek at this stage to have any part of Claim 1 struck out or dismissed. Notably the first respondent is not advancing or relying on either of the statutory defences available to it that it is not liable for the actions of its employees (commonly referred to as the ‘reasonable steps’ defence).[5]On 23 June 2023, three days after submitting Claim 2, the claimant applied to add the second respondent to Claim 1. The application was never determined because the claimant withdrew it on 3 November 2023 on the basis that she should secure a default judgment against the second respondent in respect of Claim 2 because of a failure by the second respondent to submit a response. Ultimately, time was extended by EJ Anstis to allow the second respondent to file a response defending the claim.[6]By way of Claim 2 the claimant made a large number of allegations that appear broad and that the respondents say overlap with Claim 1. Furthermore, the respondents maintain that many of the allegations in Claim 2 have nothing to do with the second respondent (the only respondent in that claim) in any event. The claimant then issued Claim 3 against all four respondents. Again there appears to be significant overlap between Claim 3 and the other two claims. Likewise the respondents say that many of the allegations should have been advanced in Claim 1 and that this amounts to an abuse of process.[7]At the same time as withdrawing her application to join the second respondent to Claim 1, on 3 November 2023 the claimant made an application to amend Claim 1 which appears to include many of the allegations made in Claim 3. Subsequently in her email to the tribunal on 4 September 2024, the claimant has asserted that Claims 2 and 3 were only really intended to be applications to amend Claim 1.[8]Between the claimant issuing Claims 2 and 3, the matter was listed for a case management PH before EJ Maxwell on 4 July 2023. In advance of that PH the claimant made a series of applications which the first respondent maintained were misconceived including an application to adduce evidence covered by the ‘without prejudice’ rule and an application to strike out the first respondent’s defence to Claim 1, both of which were dealt with at further PHs (see below).[9]It is evident from EJ Maxwell’s summary of the PH on 4 July 2023 that little was achieved at that hearing. There was then a further 3-day PH before EJ Ord on 11 to 13 December 2023 to make a ruling on the ‘without prejudice’ issue. The claimant’s application was dismissed. There followed a further (third) PH on 12 and 13 February 2024 before EJ Street. Again it seems little was achieved at that hearing not least because it appeared that the respondents and EJ Street did not have before them the two additional claims that the claimant had submitted at that point. The claimant’s strike out application against the first respondent was refused. EJ Street listed the claims for a substantive 20-day hearing commencing in November 2025. The matter was then listed for yet another fourth case management PH on 31 May 2024 which came before EJ Bedeau.[10]In advance of that hearing on 3 May 2024 the respondents made the application (now before me) for strike out and determination of jurisdiction. EJ Bedeau listed the matter for three days to be heard on 4 to 6 December 2024. On the application of the claimant, that hearing came out and was relisted before me today.
The issues
[11]In accordance with EJ Bedeau’s order (and set out in substantive detail in the respondents’ application of 3 May 2024) the issues to be determined at this Preliminary Hearing were identified as follows: 11.1. Whether there should be orders for strike out and/or a deposit in relation to Claims 2 and 3 because: 11.1.1. The tribunal lacks international jurisdiction in relation to claims against the second, third and fourth respondents; 11.1.2. The tribunal lacks territorial jurisdiction in relation to claims against the second, third and fourth respondents; 11.1.3. Some of the claimant’s claims against all respondents are an abuse of process; 11.1.4. The claims against the second, third and fourth respondents have no reasonable prospect of success; and/or 11.1.5. The claimant’s claims under s111 EqA have no reasonable prospect of success.[12]As an aside, the respondents say that the first two issues are not technically ‘strike out’ matters but are instead jurisdictional matters to be determined as preliminary issues of their own but, be that as it may, it made absolutely no practical difference for the purposes of this PH. In short, it is abundantly clear and has been since receipt of the respondents’ application last May 2024 that the purpose of this hearing was to determine whether Claims 2 and 3 or any part of them should be dismissed or not (by reason of a strike out order or because of a lack of jurisdiction).[13]This was not, as the claimant tried to suggest before me, an attempt on the respondents’ behalf to alter the basis of EJ Bedeau’s order. All the respondents’ representative, Mr Forshaw, was seeking to do was make sure that the tribunal determined the issue on the correct legal footing and nothing more. I did not accept that there was any room for any doubt or confusion about the purpose of the preliminary hearing. It was abundantly clear from the inordinate amount of material before me (referred to below) including detailed skeleton arguments, witness statements and lengthy authorities bundles, that all parties, including the claimant, knew exactly what was being decided at this hearing. Evidence and Procedure[14]Despite this PH being listed for only three days, I was provided with an electronic bundle of evidence consisting of 1161 pages from the respondents. Unfortunately, it seems the claimant was unable to agree this bundle and as a result I also had a further separate bundle of documents to which the claimant referred in her evidence consisting of 469 pages. In addition, I had a witness statement from the claimant consisting of 22 pages (containing 95 paragraphs). For the respondents I had a witness statement from Ms Medrano consisting of 15 pages (44 paragraphs).[15]In addition to the evidence, very helpfully I also had skeleton arguments from the claimant (32 pages) and from Mr Forshaw on behalf of the respondents (36 pages) in support of their respective positions.[16]Accompanying those skeleton arguments were two authorities bundles from the claimant and respondents respectively. The claimants bundle of authorities totaled 770 pages and consisted of 29 authorities and extracts from various materials. The respondents’ bundle of authorities totaled 734 pages and consisted of 39 authorities and two short extracts from Harveys.[17]In an effort to assist in navigating the claims, attached to the respondents’ application (dated 3 May 2024) were two schedules prepared on behalf of the respondents summarizing the claims in Claim 2 and Claim 3 respectively in table form. I interpose here that the schedule for Claim 3 is annexed to these written reasons (as referred to in the Judgment at the outset). For the purposes of this hearing the respondents’ representative also provided (in table form) a document listing the allegations by reference to the schedules attached to its application. The purpose of this additional document (entitled “Respondents’ Table of Allegations for Claims 2 and 3”) was to illustrate the extent to which the allegations in Claim 2 and Claim 3 were unrelated to the respondents against whom the claims had been brought.[18]The claimant complained that this had been provided to her only a day or two before the hearing contrary to the recommendations of EJ Bedeau. I was satisfied that this did not impact on the fairness of the hearing. The purpose of the document was to assist everyone in being able to easily identify the allegations referred to and, in any event, it was not a factually complicated document. The claimant must be familiar with her own case and the document simply pointed out that, according to the respondents, a considerable number of the allegations in Claim 2 did not involve the second respondent and similarly a considerable number of the allegations in Claim 3 did not involve the second, third or fourth respondents. Ultimately, it has not been necessary for me to rely on that document in any event.[19]It was apparent from the start that the agenda for this hearing was ambitious given the time available. It was unlikely that I would be in a position to provide an extemporary Judgment but I had indicated at the outset that the parties should factor in at least part of the third day for me to commence deliberating. Unfortunately that was not observed not least because time was taken up in part with certain procedural matters. As a consequence, I explained to the parties that there would be some considerable delay in receiving my reserved Judgment. Due to the extensive amount of material provided, it has taken a significant number of additional days in chambers to deliberate and produce this decision. Whilst the delay is regrettable, the parties can be assured that I have devoted the necessary time to carefully considering all the evidence, submissions and relevant law before reaching my Judgment.[20]Due to the extensive amount of material before me, it was necessary for me to take the whole of the first day to read. At the start of the second day, there was a discussion about adjustments the claimant required for the purposes of this hearing. The claimant’s application to be treated as a vulnerable witness was addressed by EJ Bedeau at the previous PH. The claimant had since obtained a diagnosis of ADHD in August 2024 which she outlined in a document she had provided described as a disability impact statement. Accordingly, the claimant was seeking permission to record the hearing as an adjustment. After hearing from the respondent and deliberating, I granted permission for both the claimant and the respondents’ representatives to record the hearing on the strict understanding that any recording was not to be released or distributed to anyone, it was to be used as an aide memoir only for the purposes of oral submissions and the recordings by each side had to be destroyed at the end of the final day of this PH. The claimant agreed to this approach and was satisfied that this met her needs.[21]I ensured regular breaks were offered to the claimant and reminded the parties to ask if they needed to stop for any reason. I heard evidence first from Ms Medrano and then from the claimant. The witness evidence was concluded by the end of day two.[22]At the beginning of the third day, further time was taken up dealing with a point about the claimant seeking to introduce material the respondents say was privileged. As recorded in her previous case management summary, EJ Street had observed that it is unhelpful to present applications in the middle of a hearing and cautioned the parties against doing so. Rather disappointingly, having concluded the evidence on the second day, overnight the claimant produced a witness statement from a Nancy Preston referring to documents about Lotus Development UK Limited (the company the claimant worked for originally) prior to the TUPE transfer to the first respondent and the particular document the respondents maintained to be privileged. With the agreement of all parties I took time to read the disputed document and determined that it was not materially significance to the issues I had to decide and that I had no reason to refer to it. Accordingly, it was not necessary for me to make a ruling on whether it was privileged or not and I did not need to consider any further witness evidence.[23]Flowing from the material produced by the claimant at short notice, it seems that the respondents believed that the claimant had access to documentation that should not have been available to her or that she was required to disclose or deliver up. Consequently, Mr Forshaw on behalf of the respondents explained that he may need to make an application for the this tribunal’s permission to make collateral use of the statement and material unexpectedly disclosed by the claimant in relation to what I understood to be a separate dispute outside of these proceedings. I indicated that it would not be appropriate to deal with that application at short notice because the detail and basis of it ought to set out in writing so that the full nature of it could be understood by the claimant. Mr Forshaw opted to take the pragmatic approach of allowing time for the claimant the have the opportunity to respond to a voluntary request in the hope that any further application to the tribunal about this matter would not be necessary. Nevertheless, I indicated that if that approach was unsuccessful then the application should be made in writing and a request made for me to hear it if that could be accommodated in time.[24]As a consequence of these interim issues oral submissions did not start until mid-morning on day three. Firstly, I heard submissions from Mr Forshaw expanding on his skeleton argument. I then heard detailed oral submissions from the claimant who also referred to her skeleton argument and various authorities.[25]As anticipated, there was insufficient time for me to provide an extemporary judgment and reasons. I therefore had to reserve my Judgment.
Findings of fact
[26]I make the following findings of fact on the balance of probabilities from the evidence before me.[27]The claimant has been employed by the first respondent since 1 July 2001 following a TUPE transfer of her employment with Lotus Development UK that commenced on 22 July 1996 (this being the start of her period of continuous employment).[28]The claimant is contracted to work for the first respondent and is paid by the first respondent via its payroll. All employment benefits that she receives are from the first respondent with the exception of a business travel insurance policy that is held by the second respondent.[29]In August 2016 the claimant joined the acquisitions integration team as an acquisitions integration manager.[30]In 2017, the claimant brought tribunal proceedings against the first respondent and four individuals who were employed by the first respondent and responsible for managing the claimant at that time. Her claims were for detriments arising from making protected disclosures (s47B Employment Rights Act 1996) and for victimisation (s27 Equality Act 2010). Notably, the claimant never suggested in those proceedings that anyone other than (or additional to) the first respondent was her employer. The claimant was absent due to sickness from 6 February 2018 (according to the respondent’s evidence which I accept) until October 2020 after her previous tribunal proceedings concluded. In paragraph 32 of her witness statement the claimant says her absence began in February 2017 but this appears to be an error as it does not fit chronologically with her reference to making protected disclosures in June/July 2017 later in that paragraph.[31]By reason of a Judgment of the Employment Tribunal dated 5 June 2020 promulgated on 11 August 2020 (EJ Anstis presiding and hereafter referred to as “the Anstis proceedings”) the claimant was partially successful in her claims.[32]In October 2020 the claimant returned to work and joined the Divestitures team and took the job title of Transformation Consultant. The claimant’s role was and is within the Corporate Development team and by its nature is a global role.[33]The third respondent, Ms Raeleen Medrano (hereinafter referred to by name), has never been an employee of the first respondent. Since December 2005 to the date of this hearing, she has been an employee of the second respondent (IBM Corporation). During that time she has lived and worked in the USA only. Since January 2022 she has held the role of VP, M&A Transaction Enablement (previously known as Applied Strategy and Transaction Implementation) within the Corporate Development team in the US.[34]Need it be said, the second respondent is the parent company of the first respondent and an extensive number of other subsidiary companies within the global group based in over 175 different jurisdictions across the world. It is not incorporated in the UK nor does it have a registered office address in the UK or a registered branch in the UK. Its headquarters along with its corporate address is in New York, USA. It does not carry on business in the UK.[35]The first respondent (IBM UK Limited) is a company incorporated within England and Wales. Whilst it is a whole owned subsidiary of the second respondent, it is a separate and autonomous legal entity. It has its own board of directors, the majority of whom are British nationals and it has its own management structure. I accept the evidence of Ms Medrano that none of the first respondent’s directors are members of the second respondent’s board of directors and vice versa.[36]The first respondent employed over 7000 employees in 2023 and generated revenues of over £3 billion in that same year. Like the second respondent’s many other international subsidiaries in the group, the first respondent is clearly a substantive entity in its own right. It operates independently of the second respondent.[37]As with all the second respondent’s global subsidies, commercially the first respondent is aligned with the IBM group global strategy but the second respondent does not exercise day-to-day controlled over the first respondent. The first respondent’s directors and senior management in the UK are responsible for organising and overseeing the day-to-day operational activities of the first respondent.[38]Need it be said the first respondent enters into commercial, employment and other contractual agreements that bind it. It is required to file its own financial accounts as an individual company and is subject to UK domestic laws and revenue requirements. I accept the evidence of Ms Medrano that the first respondent does not enter into contracts on behalf of the second respondent.[39]Due to the transglobal nature of the work carried out by each of the entities within the IBM group spanning 175 countries, collaboration between the individual entities has developed whereby employees of separate subsidiary companies will join together to form teams. These teams are organised by functions that are undertaken by employees in many different countries employed by many different IBM entities. Ms Medrano was at the material time a member of, and responsible for leading, the Corporate Development team. The team is made up of employees from the local entities (i.e. global companies within the group) in Canada, Australia, France, Ireland, Germany, the UK and the US. Ms Medrano is the global manager within the Corporate Development team working under the supervision of and accountable to the second respondent who is her employer. I accept her evidence that at all times she acts as an employee of the second respondent and is not under the control or direction of the first respondent in anyway.[40]Where a global team such as this exists (made up of employees from various global entities), employees will be employed by the local entity and have two management lines: a functional management line responsible for the strategic work of the team and an in-country local management line. As it suggests, in-country managers are senior employees within the legal entity in which the employee being managed is employed. They are responsible for matters associated with an employee’s working conditions and manage the employee on a day-to-day basis from an HR perspective. Insofar as this differed for the claimant, I address the reasons for that below. Therefore, as a result of the global nature of the work that some employees within the first respondent undertake (which includes the claimant in this case) they will have a functional line manager who will give day-to-day direction regarding ongoing projects, assignments and who may be based in a different country in addition to having a domestic manager who is generally responsible for HR matters, overseeing and implementing the working arrangements and conditions of their subordinates.[41]There is no question that the claimant works in a global role as part of a global team. This is an inevitable consequence of the international nature of the work done by the first respondent as part of the IBM group of companies spanning across the world. There is nothing surprising or unusual about the collaborative relationship existing between the various separate entities within the IBM group and the employees/staff within them (including the claimant) who work together to achieve common objectives.[42]Because of the global nature of the work that each individual entity (i.e. global subsidiary company) within the group undertakes, each individual company within the group, including the first respondent, has its own ‘cost centre’. Broadly speaking, this enables companies within the group to charge for the work that their employees are carrying out on behalf of other group companies. A group company with employees that are part of a global team will enter into an Inter-Company Agreement (ICA) entitling that company to bill some or all of its employment costs where work is being provided by its employees to another group company. In relation to the claimant and the role she was employed to undertake, there is an ICA in place between the first respondent and the second respondent. In essence, the first respondent is able to charge the second respondent for work that the claimant undertakes within the global Corporate Development team. As I understand it, the second respondent will then charge back some of that cost from the group subsidiary company that has benefited from those Corporate Development services.[43]I reject the claimant’s suggestion from the way she has put her case that, in effect, the second respondent is funding the claimant’s employment with the first respondent and that this in some way blurs the distinction in terms of which of these two separate entities she sits within as an employee. Indeed I find quite the contrary on the evidence. The fact that the first respondent, in essence, charges the second respondent for the cost of its employees undertaking the global work for other entities, very much differentiates between these two legal entities (and all other entities within the international group for that matter) in terms of where the employment relationship sits. It is, of course, an agreed fact that the claimant has only ever been paid directly by the first respondent.[44]Since the claimant returned to work in 2020 the claimant’s functional and incountry manager was one and the same, namely Jason Hughes, a director within the Corporate Development team employed by the first respondent and based in the UK.[45]Until January 2022, Bob Belden (VP, global transactions, implementation and synergy) was Mr Hughes’ first line functional manager and therefore the claimant’s second line functional manager (i.e. grandparent functional manager). Thereafter, Ms Medrano became Mr Hughes’ first line functional manager and thus the claimant’s second line functional manager.[46]In so far as it is relevant, the claimant’s second line in-country manager between October 2020 and February 2023 was Naomi Hill (VP finance-CFO EMEA) who was also, by definition, an employee of the first respondent at the relevant time.[47]From February 2023 onwards the claimant’s second line in-country manager (and Mr Hughes’ first line in-country manager) has been Kathy Sullivan, again, an employee of the first respondent, who holds the position of VP Innovation and Speed Programme, IBM research.[48]As noted above, it is the responsibility of the in-country manager to manage an employee’s day-to-day employment from an HR perspective. Consequently, this responsibility fell upon Mr Hughes in relation to the claimant. Unfortunately from the latter part of 2021 through to the latter part of 2022 Mr Hughes was unwell and unable to perform some of the functional direction required in relation to specific projects, but he was able to perform some day-to-day management duties supporting individuals within his team and in respect of HR related matters.[49]In his absence, the functional support was provided by Mark Nycek who happened to be an employee of the second respondent.[50]The third respondent, Ms Medrano, became more involved with day-to-day support for the claimant than was usual because the claimant had emailed her on 15 March 2022 requesting Ms Medrano’s help because of her concern regarding alleged retaliation by way of victimisation as a consequence of the previous Anstis Proceedings she had brought against the first respondent and four of its other employees. The claimant was reluctant to trouble Mr Hughes with her concerns because of his state of health at that time. Notably the claimant acknowledged in that email that she had not got to know Mr Hughes very well at that point (because of his absence) and there had not been an “opportunity to have normal discussions about career development, promotion etc…” which is consistent with an understanding that Mr Hughes as her in-country manager would be responsible for such matters.[51]Where it was necessary to do so Ms Medrano requested Mr Hughes’ to take action locally as the claimant’s UK manager. Ms Medrano also requested that the claimant’s second line in-country (UK) manager act as a mentor to provide additional local support while Mr Hughes was absent from work. I accept the evidence of Ms Medrano that, in her capacity as someone who is responsible for leading the global Corporate Development team made up of staff working collaboratively from various IBM entities across the world, she provided additional support to the claimant out of concern for her and at the claimant’s own request.[52]I am satisfied on the evidence and find as fact that in so far as Ms Medrano involved herself in the management of the claimant on an ordinary day-today basis, this was in the functional sense in terms of the projects she was expected to work on and in her capacity as the individual responsible for overseeing the direction of the global team to which the claimant belonged. In so far as Ms Medrano’s involvement went beyond that, it was in direct response to the claimant requesting her to exert any influence, if possible, over her strained work relationships.[53]Indeed, where Ms Medrano happened to involve herself to a limited degree in matters such as the claimant’s appraisal, pay and holiday, this was exceptional and out of the ordinary. Indeed, I am satisfied that it was specifically because the claimant had instigated Ms Medrano’s involvement because of a reluctance on the part of the claimant to work with her in-country manager, Mr Hughes, following his return to full-time duties in December 2022, and others in the UK management structure. Notwithstanding Ms Medrano‘s particular involvement in those matters with the claimant, key decisions about salary and bonus awards (including what the claimant should receive) remained with those responsible for managing their subordinates. Thus any changes made in relation to salary and awards were managed by the relevant individuals within the local entities of respective employees across the globe, regardless of Ms Medrano’s functional management of them in her global role, which in the claimant’s case was the first respondent.[54]In her evidence and throughout her witness statement the claimant seeks to assert that as well as always being an employee of the first respondent, she has at all times been jointly employed by the second respondent. In paragraph 3 of her statement she says that both the first and second respondents are her “joint employers”. Having carefully considered all of the extensive evidence before me, simply on an objective basis, I am not at all persuaded by the claimant’s account and conjecture that she advances in support of her assertion that her circumstances were such that she had a simultaneous employment relationship with both the first and the second respondents (or, need it be said, that there was ever any kind of employment relationship in existence between her and the second respondent). Furthermore, I am fully satisfied on the evidence that the claimant has never genuinely believed or understood that to be the true position. The claimant presented before me as someone who is highly intelligent and extremely articulate. What the claimant now seeks to claim, particularly throughout the first eight pages of her statement (paragraphs 1 to 36) but also beyond, flies in the face of her own stated position up to 2023.[55]It is neither necessary or proportionate for me to recite in these reasons a great deal of the evidence to deal with the point but I extract and include from the abundance of available documentation particular examples of the more significant documents and communications that featured in evidence-in-chief and cross-examination of each witness.[56]Consistent with the Anstis Proceedings, the claimant maintained in Claim 1 issued in October 2022 that she was and has always been an employee of the first respondent. In the first paragraph of her particulars of claim she states: “The Claimant is employed by the Respondent, IBM United Kingdom Limited C'IBM"), having joined IBM in July 2001 via a TUPE transfer, following IBM's acquisition of Lotus Development UK Ltd, and has a continuous service date of 22 July 1996.”[57]That statement is in accordance with the letter the first respondent wrote to the claimant on 21 May 2001 with the heading: “Transfer to IBM (United Kingdom) Limited”.[58]The first paragraph of the May 2001 letter stated: “Following the acquisition of Lotus Development UK ('LOUK') by IBM I now have pleasure in confirming that your employment will transfer to IBM (United Kingdom) Limited ('IBM') on July 1, 2001. You will transfer in your existing role in job band 8 and you will report to Kay Mason. Your base location will remain unchanged.” The letter head referenced “IBM United Kingdom Limited” and included the first respondent’s registered address in Portsmouth, UK and its UK telephone and fax number.[59]The letter, which was five pages in total, set out the details of the claimant’s employment particulars with the first respondent. In addition to referencing the various policies, schemes and benefits applicable in relation to her employment with the first respondent, the letter also included the following section on the fourth page: “Contractual Terms and Conditions Your employment is subject to the terms and conditions contained in the IBM Handbook for Permanent Employees which can be found at http://w3.emea.ibm.com/humanresources/uk/ and also to the conditions set out in the Business Conduct Guidelines Booklet which can be found at http://w3.enterlib.ibm.com:80/cgibin/bookmgr/BOOKS/zbcguide/CCONTEN TS. You should read both these documents in conjunction with this letter, as they will form part of your contract of employment with IBM. This offer letter, and the enclosed documents referred to within it, constitute the entire agreement between you and IBM relating to your employment and supersede all previous communications and understandings, whether written or oral relating thereto. Your contract will be governed by English Law and subject to the exclusive jurisdiction of the English courts.”[60]The letter was signed by an HR Partner above the capitalized words “FOR AND ON BEHALF OF IBM UNITED KINGDOM LIMITED”.[61]On 30 May 2001, the claimant signed the document attached to that letter headed “Acceptance of Terms of Employment”. At the outset it states: “I hereby accept the offer of employment with IBM UK Limited as set out in your letter dated 21st May 2001 which I have read and understood. I have also read, understood and agree to the terms of the Confidential Infomation, Copyright and Invention Agreement below and the terms of the Business Conduct Guidelines published on the IBM intranet http://w3.enterlib.ibm.com:80/cgjbin/bookmgr/B00KS/zbcgujde/CCONTENTS.”[62]That document also contained an undertaking by the claimant in relation to confidential information. Under the heading “Confidential Information, Copyright and Invention Agreement” various provisions were set out starting with the following: “In consideration of my employment by IBM, I agree as follows: 1.“IBM” includes International Business Machines Corporation of Armonk, New York, and any of its subsidiaries within the meaning of Section 736 of the Companies Act 1985. 2.….”[63]The remaining clauses were not exceptional in terms of what an agreement of this kind would include and I do not need to set them out here.[64]It is clear that the claimant was agreeing to maintain confidentiality in respect of any relevant information or material that she became aware of in relation to not only the first employer but also the parent company (the second respondent) and other subsidiaries within the group by reason of the work she was required to undertake for the first respondent.[65]Aside from common sense, on any objective or natural reading of that document it is clear that its purpose was to protect the interests of not just the first respondent but those many other entities within the group (of which there are in excess of 175) to which it belonged and did not in any way confer, or suggest there to be, any kind of contractual relationship (and certainly not one of an employment relationship) between the claimant and the second respondent and/or all the second respondent’s subsidiaries. In addition, on the evidence before me I find as fact that the claimant never considered this document to have that result or meaning at the time she signed it or subsequently. Indeed, she had entered this agreement years before her lodging her 2017 tribunal claim (the Anstis Proceedings) and Claim 1 presently before me (issued on 30 October 2022) in which she maintained that she was only ever an employee of the first respondent.[66]The same reasoning applies in relation to the applicability and relevance of the Business Conduct Guidelines. These existed to ensure global consistency between the significant number of international subsidiaries forming the group and did not create or confer upon the claimant and the second respondent any form of contractual relationship let alone an employment one. Indeed, I accept Ms Medrano’s evidence that such policies are implemented locally by the subsidiary companies (including the first respondent). The applicability of the guidelines were governed by the contract between the claimant and the first respondent only.[67]On 13 August 2020 the claimant sent a copy of the Judgment in the Anstis Proceedings to Arvind Krishna (Global Chairman and CEO of the second respondent) and Jim Whitehurst (President of the second respondent) who were both based in the US, as she “wanted to make absolutely sure that [they were] aware of [her] situation”. At the outset of her email she describes herself as “a UK employee” and concludes it with a paragraph in which she says: “It is my hope that this judgment will act as a catalyst for change, that is clearly needed, in IBM UK…”.[68]From the evidence it is apparent that the claimant’s email was referred back to the UK because a response to it was sent to the claimant by Anne Conroy, who was the first respondent’s HR Lead. That was, of course, consistent with an understanding that this was a matter between the first respondent and one of its UK employees and was not a matter that should be dealt with by the US company (the second respondent).[69]On 3 September 2020 the claimant forwarded that email to the newly appointed General Manager of IBM UK & Ireland, Sreeram Visvanathan. In her email she says: “By way of background, I attach an email that I sent to Arvind and Jim 3 weeks ago, regarding a judgment made in the UK Employment Tribunal that I had suffered victimisation by IBM UK as a result of raising concerns (aka whistleblowing), including about discrimination. You will see that I received a response a few days later from Anne Conroy, UKI HR Leader. Anne did not confirm whether my email had actually reached Arvind & Jim, merely that it had been passed to her. She did however state that "these matters are taken very seriously" and that "appropriate action" would be taken.”[70]The claimant sent a further email to Arvind Krishna and Jim Whitehurst on 30 October 2020 following up her previous communication. It seems the claimant was of the view that “appropriate action” had not been taken following the judgment against the first respondent and its other employees who were named respondents. Notably, the claimant concluded that email with the following paragraph: “Please do not simply pass this email on to UK HR again, as I believe them to be responsible for the ongoing retaliation against me. Instead please respect that I have come direct to you, in confidence, as a whistleblower, and that I am asking that 'carefully considered' actions be taken as soon as possible, as per Judge Anstis's remarks (below).”[71]It is evident from her own communication that the claimant did not trust the first respondent’s HR team. It is also evident that it was the claimant who was pressing for senior employees within the US parent company to become embroiled in her dispute with the first respondent and that this was not something that was being driven by either the first or the second respondent.[72]Suffice it to say that the claimant’s perception of her UK employer and some of its senior staff did not improve. By May 2022, the claimant was having plaintive communications with Ms Medrano (her second line functional manager at this time) expressing her views about how she believed she had been treated. In an email to Ms Medrano on 5 May 2022 the claimant referred to the state of her mental health as “…best described as ‘moral injury’…” and went on to say: “I believe this moral injury has been caused by actions taken/authorised/condoned by senior UK based employees, namely Sreeram Visvanathan (CEO), Anne Conroy (HR Leader until l she retired Feb 2022), and Lynn Scott, Global Concerns & Appeals. I took you through some of those actions, and I believe there has been a deliberate campaign of psychological abuse designed to get me to resign, the creation of a 'hostile environment', and a complete failure of the legal 'duty of care' for my mental health.” Further on she wrote: “Despite winning comprehensively at the Employment Tribunal (only 4% of whistleblowers win - it's a very high bar), IBM UK has refused to even acknowledge that I was victimised, refused to reassure me that the position taken that I have no future in the company has changed, and as far as I'm aware not a single step was taken as a result of the judgment (because they don't acknowledge they did anything wrong). This concerns me, because I suffered 'substantial discrimination', and the Judge's direction which said "we hope that the first respondent (IBM UK) will reflect on this judgment and take steps to ensure that someone in the position of the claimant is not subject to such detriments or victimisation in the future" has been ignored. I feel I should do more to protect other employees, there needs to be organizational change, and that hasn't happened. The more I try to point out the huge disconnect between our Values and the actions in the UK, the worse things get.” In her concluding paragraphs she wrote: “I am very concerned that this will be directed back to IBM UK as a 'UK matter'. I have consistently said that IBM UK are responsible for victimising me - if it's referred to them, then further victimisation is the likely outcome (as before). If you need a UK view, you might like to contact Joanna Hodgson - Red Hat UK Country Leader https://www.linkedin.com/in/joanna-hodgson671bb7/ I used to work for Jo when she was in IBM, and she is aware of my case (although it has been a while since we caught up). Red Hat will have a UK based legal team - who you could ask for confidential and impartial advice. I am fine with you discussing what I have shared with you, with Jo and them. I'm also fine with you sharing this email and an overview of our conversation with Peter Anderson as I know this is not a usual situation, and you will need advice. I will send you a few emails which I hope will illustrate the above, including one about the Equal Pay, which I raised, was ignored (victimisation / harassment) and then when I escalated it, was not dealt with according to the law - despite (or because of) the personal involvement of both Lynn Scott and Anne Conroy. I had to put it on hold because I felt I was completely on the edge of a complete breakdown at the time as a result - but I need to address it now. Thank you for listening, I hope we can find a way forward together.”[73]Again, it is evident that it is the claimant who is seeking to draw in Ms Medrano in her capacity as her second line functional manager (along with other senior figures from the second respondent) in the hope that she and others might exert whatever influence possible over the dispute and deteriorating relationship between her and her UK employer, the first respondent.[74]The claimant returned to work in June 2022 but on reduced hours.[75]On 6 July 2022 the claimant sent an email to Ana Paula Assis containing a grievance. It is evident from the opening paragraph that the claimant wanted her grievance to be investigated externally. This was because her allegations involved her UK employer, the first respondent, and senior members of staff within it including those within its HR department. As a consequence (as noted above), there was an absence of trust in the first respondent’s HR team on the part of the claimant. It is of interest that in Ms Assis’ response, she noted the fact that the claimant had already contacted the CEO and senior leaders outside of the legal entity (namely, the first respondent) that the claimant “was employed”. This was, of course, a reference to the fact that the claimant had sent the Anstis Judgment to Mr Krishna and Mr Whitehouse of the second respondent in 2020 (something the claimant had explained in her lengthy email of 6 July 2022). Ms Assis indicated initially that it was not usual policy to involve an external investigator when addressing grievances but referred the matter to a European HR adviser outside of the UK entity, Gianni Cataneo.[76]There followed a chain of communications between Mr Cataneo and the claimant in which the claimant maintained her position that, given how past grievances (prior to the Anstis Proceedings) had been investigated by the first respondent and its staff, and the content of her latest grievance, it would be inappropriate for any investigation to take place internally within the UK. After continued exchanges and delays due to it being the holiday period, on 14 September 2022 Mr Cataneo emailed the claimant saying: “…I am continuing to progress finding an appropriate investigator who would look into the issues you have raised and who is sufficiently distanced from those you consider to be involved.”[77]On 23 September 2022 the claimant submitted a further grievance about the delay in addressing her July grievance caused by a failure to appoint an investigator. For these purposes it is not necessary to distinguish between the two grievances and it is enough to refer to them collectively as ‘the grievance’.[78]Three days later, Mr Cataneo sent an email to the claimant containing the following: “The investigator I have identified is Dr. Lydia Campbell, IBM Vice President & Chief Medical Officer, Corporate Health & Safety. Dr Lydia Campbell is US based and has no reporting lines into the UK or Employee Concerns. She will follow IBM Grievance process as far as appropriate. As a first stage she will contact you to set up a call with you and understand your concerns and ask you to provide documents.”[79]In her response of the same day (26 September 2022) although the claimant pointed out that she believed Dr Campbell had a reporting line in to Joanna Daly (to whom the claimant had raised that the UK was not complying with the Equality Act, one of the topics of her grievance), the claimant indicated that she was content for Dr Campbell to be appointed as the decision maker regarding her grievance.[80]Need it be said, Dr Campbell is and was at all times an employee of the second respondent only. She had no connection to the first respondent or the claimant. Having regard to the claimant’s entrenched position that no one from or connected to the first respondent should determine her grievance, it was for precisely this reason that Dr Campbell was appointed to hear the claimant’s grievance.[81]In October 2022, around the time that she filed Claim 1 currently before this tribunal, the claimant commenced sickness absence again and remained off work until February 2023. The claimant came back to work for 1.5 days per week until commencing sickness absence again on 26 June 2023 and has remained absent from work ever since. During the time she was back at work for 1.5 days per week, at her request, the claimant had been given permission to work exclusively on her grievance in relation to her treatment at work and her own risk assessment.[82]In the meantime, on 14 December 2022 the claimant wrote to Dr Campbell, copying in her second line in-country manager, Kathy Sullivan, objecting to working with Mr Hughes who had not long beforehand returned to work following his period of significant illness. She claimed for the first time that he too had subjected her to psychological abuse and coercive control. The claimant gave no reasons for making this assertion but it seems that this was in reaction in part to receiving the first respondent’s response to her earlier tribunal claim issued in October 2022. Given this turn of events, it was not surprising that Ms Medrano’s continued involvement in the claimant’s day-today management was more than usual or expected. Be that as it may, despite the assistance provided by Ms Medrano in co-ordinating responses to the claimant’s concerns, it is evident that responsibility for the claimant’s working conditions and pastoral support remained with staff and managers employed by the first respondent. In particular, in communications between the claimant and Ms Medrano in December 2023 dealing with the claimant’s continued absence, both the claimant and Ms Medrano referred to the fact that Elisa Pearson within the first respondent’s HR team had been liaising with the claimant regarding her employment particulars. Furthermore, Ms Medrano confirmed that Mr Hughes, Tracey Webster and Cindy Blood, all of whom were employees of the first respondent, were available to assist her with a referral to Occupational Health for an assessment and the preparation of a risk assessment thereafter.[83]Dr Campbell sent the claimant the grievance outcome on 23 August 2023. For these purposes it is not necessary to go in to any of the detail regarding the grievance outcome. Suffice it to say, the claimant was not happy with the decision and lodged an appeal.[84]The content of the claimant’s email appealing against the grievance investigation outcome is also revealing in terms of her own approach to the question of who in fact employed her. This was set out in an email from the claimant to Ms Medrano dated 31 August 2023. On her own case, one of her significant criticisms was that: “The US based investigator inappropriately applied US legal and cultural norms to a UK grievance investigation, ignoring highly relevant UK legislation covering 'mutual trust and confidence', 'duty of care', and UK GDPR compliance…. …In order to ensure the integrity and fairness of the appeal process, it is also essential that the investigator not have a conflict of interest, and that they have a good understanding of UK legal and employment norms.”[85]Having been informed that Bart van de Weghe had been chosen to deal with the claimant’s grievance appeal, the claimant repeated her objections to a “non-UK investigator especially one from the US” in a follow up email to Ms Medrano on 19 September 2023. She said: “As I explained, I'm highly concerned that a non-UK investigator, particularly one from the US, will result in an unfair process being followed, as is already the case with the investigation the Appeal that Bart is investigating - partially due to a lack of knowledge of UK norms processes, and significant differences in our employment legislation.”[86]I am satisfied and find as fact that the claimant was not and never considered herself to be employed by any entity other than the first respondent in the UK and insofar as the second, third and fourth respondents (as well as other employees of the second respondent) had a part to play in managing the claimant and her dispute with the first respondent, this was to provide a degree of independence and distance from her employing entity, the first respondent, given the dispute between them.[87]This finding of fact on the evidence before me is compounded by what the claimant wrote on 27 October 2023 in an email to Mr Weghe (and others) in which in her very own words she states: “I am a UK employee, I work in the UK, and my employment is governed by UK legislation, which expects that the investigator consider the employee's health during the grievance process. I raised these issues in advance of Lydia commencing her investigation, and sought at least, assignment of someone local to have grievance meetings with, even if Lydia retained overall responsibility for the investigation. This was not put in place, and I suffered significantly as a result. It is not necessary for me to go in to a great deal of evidence to deal with the point but I extract from the abundance of documentation particular examples of communications that featured in evidence-in-chief and cross-examination of each witness.”[88]What is all the more significant and remarkable is that this was the claimant’s own stated position four months after submitting Claim 2 against the second respondent (on 20 June 2023) and three days before she submitted Claim 3 against the second, third and fourth respondents (dated 30 October 2023) in addition to the first respondent. The claimant’s own definitive position at the time of those claims was that she was not employed by anyone other than the UK entity, namely the first respondent.[89]I am satisfied that this accords with the reality of the situation and the factual position on an objective analysis of the evidence. Her working conditions and ultimate control of her in terms of her working arrangements remained the sole responsibility of the first respondent with whom she had and has a contract of employment and by whom she continues to be employed.
The Relevant Law
[90]Below I set out in brief terms the law that is material to the issues I am required to determine on the basis of the facts I have found to be relevant in this case. It is neither necessary nor proportionate to mention every authority to which I was referred and the fact that this is a summary only does not mean that I have failed to have proper regard to all the authorities to which I was referred by the parties in their respective written and oral submissions.[91]It is a fundamental principle of law that the UK Parliament does not legislate for the whole world and its courts and tribunals do not usually have jurisdiction over those who are not domiciled and do not do business within its territorial boundaries. There are two very separate considerations when it comes to the issue of jurisdiction: 1) international jurisdiction; and 2) territorial reach of statutory rights. These issues are distinct and separate from one another and must be treated as such (Simpson v Intralinks [2012] ICR 1343 and more recently Stena Drilling PTE v Smith [2024] EAT 57). International jurisdiction[92]I accept the submission on behalf of the respondents that whether or not the tribunal has international jurisdiction to determine the current claims against the second, third and fourth respondents falls to be determined under sections 15C and 15D of the Civil Jurisdiction and Judgments Act 1982 (“CJJA”). I agree with the respondents that (former) Rule 8 of the Employment Tribunal Rules of Procedure 2013, now Rule 10 of the new 2024 Rules which is identical to former Rule 8 in all material respects, does not provide an alternative or independent route that provides the tribunal with international jurisdiction. I would have reached that conclusion notwithstanding that, since hearing submissions, the EAT has delivered its decision in Cable News International Inc v Bhatti [2025] EAT 63. At paragraph 75 of Bhatti Kerr J confirmed that this rule does not confer international jurisdiction on the tribunal and the matter is to be determined in accordance with the Recast Brussels Regulation (No.1215/2012) (otherwise known as Brussels I Regulation) or, following Brexit, the relevant provisions of the CJJA 1982.[93]Section 15C(1)-(2) CJJA 1982 provides: “(1) This section applies in relation to proceedings whose subject-matter is a matter relating to an individual contract of employment. (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 situation (regardless of the domicile of the employer).” Section 15C(7) CJJA 1982 provides: “(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]These provisions should be interpreted having regard to the Brussels I Regulation.[95]In accordance with the provisions set out above, it is clear that the statute provides a route for an employee to sue an employer, namely a person with whom the employee has entered into an individual contract of employment. Therefore, in short, the question is whether or not the second, third and fourth respondents were the claimant’s employer for the purposes of s15C.[96]The concept of employment is broader in European law than in domestic law but in accordance with authorities such as Bosworth v. Arcadia [2020] ICR 349 and Alta Trading UK Limited v. Bosworth [2021] ICR 1358 the following should exist:(a) A contractual relationship between the putative employee and employer (which can be formal or inferred);(b) A relationship of subordination between the two relevant parties;(c) A relationship whereby the putative employee provides services under the direction of the putative employer and receives remuneration for those services.[97]Companies are, of course, legal entities in their own right and it is also clear from the authorities that the ordinary and trite principles of corporate personality are not overridden by the definition outlined above. Importantly, I accept the submission on behalf of the respondents that in accordance with the decisions in Arcadia Petroleum v Bosworth [2016] EWCA Civ 818 and Cunico Resources NV v Daskalakis [2019] EWHC 57 there is no scope for individuals to argue that they are employed by a group of companies generally. That said, an individual may be found to be an employee of a group company for the purposes of the Brussels I Regulations in circumstances such as those applicable in Samengo-Turner v J&H Marsh & McLennan (Services) Limited [2008] ICR 18, Petter v EMC Europe Limited [2015] IRLR 847 and Cunico.[98]Notably, however, there is a distinction to be drawn in relation to those cases. Both Samengo-Turner and Petter involved a direct contractual relationship existing between the individuals and the group company (said not to be the employer) conferring upon them rights to a share option scheme. This was central to the dispute between them and the concept of employment was extended to protect them from having action taken against them in the US.[99]In Cunico, although paraphrasing somewhat, on the specific facts found in that case the court determined that despite being formally employed by a different company, in reality the existence of a contract between the individual and the other group company could be inferred because he had taken a position within it.[100]Those cases are nevertheless fact specific as pointed out by Gross LJ in the Court of Appeal decision in Arcadia Petroleum v Bosworth (above) (in reference to Samengo-Turner and Petter).[101]With these concepts in mind it is necessary to turn briefly to domestic law, although for convenience I also reference certain authorities in my conclusions set out below when applying the relevant law to the facts.[102]It is a well-established principle of law that generally one employee cannot simultaneously have two employers in respect of the same employment (Patel v Specsavers Optical Group Ltd UKEAT/0286/2018 and Cairns v Visteon UK Ltd [2007] IRLR 175). In accordance with the EAT decision in United Taxis Ltd v Comolly and anor and another case [2023] EAT 93 the same principle translates to the engagement in which the putative worker is providing such work or services. In essence there can only be one other corresponding party to the contract through which the work is performed under s230(3)(a) or (b) ERA and s83(2) EqA.[103]Likewise, in accordance with James v Greenwich LBC [2008] ICR 545, CA, a case involving a tripartite agency relationship, a tribunal will only be entitled to imply an employment contract between an agency worker and an end-user where it is necessary to do so to give business reality to the situation. No such necessity arises where agency arrangements are genuine and accurately represent the relationship between the parties. That principle is just as applicable in circumstances where non-contracting parties have deliberately and genuinely set up contractual arrangements in a different way. Territorial Reach[104]For reasons that are clear in my conclusion I need deal with this only briefly. As explained in the seminal case of Lawson v Serco Ltd and two other cases [2006] ICR 250, HL, the United Kingdom “rarely purports to legislate for the whole world” and UK legislation is on the face of it territorial. As such, territorial boundaries apply to employment rights. If an employee or their employment falls outside of the boundaries, they will be unable to enforce those rights. Neither the ERA or EqA expressly states the territorial application of the rights they contain. It is a matter for tribunals and courts to determine the limits that apply. There is a substantial amount of case law from which a general formula has emerged for determining the circumstances in which an employee who works wholly or partly outside of Great Britain can claim under those Acts. The general rule is that those Acts only apply to employment in Great Britain. However, in exceptional circumstances the legislation may also cover working abroad.[105]The three principal authorities that provide the most comprehensive guidance in relation to how the law applies in these circumstances are Lawson (above); Duncombe v Secretary of State for Children, Schools and Families (No.2) [2011] ICR 1312, SC; and Ravat v Halliburton Manufacturing and Services Ltd [2012] ICR 389 SC. There are of course a number of other authorities but these are the leading cases that need mentioning in this short summary of the law.[106]When extracting and summarising the principles to be applied from those cases it is difficult to do better than to quote in full the summary provided by Underhill LJ at paragraph 2 in Jeffrey v British Council [2019] IRLR123: “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] ICR 250 ; Duncombe v Secretary of State for Children, Schools and Families (no. 2) [2011] UKSC 36, [2011] ICR 1312 ; and Ravat v Halliburton Manufacturing & Services Ltd [2012] UKSC 1, [2012] ICR 389 . 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, [2013] ICR 883 , and Dhunna v CreditSights Ltd [2014] EWCA Civ 1238, [2015] ICR 105 . 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, section 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 section 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 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 (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438, [2016] ICR 975 . 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.”[107]In addition to the reference to R (Hottak) in the extract above, the Court of Appeal in Bates van Winkelhof also confirmed that the Lawson principles apply to other employment statues that are silent on their span of territory jurisdiction, including the EqA.[108]In this case the focus is on the extent to which questions of territorial scope extend to non-employer respondents. This was addressed by the Court of Appeal in Foreign and Commonwealth Office v. Bamieh [2020] ICR 465. In short, Gross LJ explained at paragraph 65(iv) that “an application of the ‘British connection’ test [of the kind referred to in Ravat – see above] in the context of s47B(1A) must, at the least, be adapted to include consideration of the relationship between the co-workers in question.” Instructing, causing or inducing EqA contraventions[109]Sections 111(1) to (3) EqA 2010 provide that a person(a) (A) must not instruct, cause or induce another person(b) (B) to do anything in relation to a third person(c) (C) which would amount to a ‘basic contravention’. Basic contraventions are defined as being “anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1)”.[110]Section 111(7) EqA 2010 limits the operation of sections 111(1) to (3) EqA 2010 by providing: “(7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B.”[111]In Arvenescu v. Quick Release (Automotive) Limited [2022] EAT 26, the EAT held that an employee could not bring a claim against a former employer under section 111 EqA 2010 where it was alleged that the former employer had caused a subsidiary to reject a job application (as an act of victimisation). Section 111(7) prevented such a claim because the former employer and its subsidiary company within the group could not discriminate against each other. Res Judicata[112]The rule in Henderson v Henderson [1843] 3 Hare 100, ChD can apply in the context of cause of action estoppel and issue estoppel, where parties may be estopped from raising causes of action or issues that could and should have been dealt with in earlier proceedings to which they were also party. That said, the Henderson rule should be invoked only where there is a need ‘to protect the process of the court from abuse and the defendant from oppression’ (see Lord Millett in Johnson v Gore Wood and Co [2002] 2 AC 1, HL).[113]Lord Bingham explained how the rule should apply in Johnson (above) as follows: “Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances” (emphasis added).[114]As Lord Bingham made clear in Johnson, a claim will not be barred simply because it could have been brought in earlier proceedings; the tribunal must also be satisfied that it should have been brought earlier. Conclusions on Jurisdiction and the second, third and fourth respondents[115]In accordance with my findings of fact, it is evident that the second respondent was not at any stage the claimant’s employer. There was and is a direct contractual employment relationship between the claimant and the first respondent in the form of an express written agreement. Indeed, the existence of an employment relationship between the claimant and the first respondent is not disputed by her. There is no formal or informal contractual employment relationship between the claimant and the second respondent nor is it in any way necessary to infer one given the existence of the employment contract between her and the first respondent.[116]The claimant had no managerial responsibilities within or on behalf of the second respondent. True it is that the claimant was to some degree subject to the direction of an employee of the second respondent (Ms Medrano) but this is no different in many respects to all sorts of industrial situations involving different commercial undertakings. By way of example, it is not uncommon for an employee (“X”) of one commercial undertaking to be sent to work on a project for another wholly unconnected commercial undertaking possibly as part of a team made up of people employed by various other unconnected businesses but who are sharing their skill and knowledge for the purposes of meeting the objectives of the project. Often there will be a project ‘manager’ (“Y”) overseeing, coordinating and/or directing the work of those who make up the team. That project manager, Y, may be an employee of the commercial undertaking, wholly independent of the company employing X, that has commissioned the project or some other separate undertaking. In no way could it be said that because Y is giving direction to X as to how the project should run, that somehow gives rise to an employment relationship between X and Y or between X and Y’s employer (inferred or otherwise).[117]The point is perhaps better made by reference to the relevant authorities. James v London Borough of Greenwich provides another similar (and possibly better) example of a situation (a tripartite agency relationship) in which an employee of one company can be under the de facto management and direction of someone from another ‘end user’ company without there being any employment relationship (or the need to infer one) with the end user company.[118]These examples are illustrative of the kind of relationship the claimant had with the second respondent and Ms Medrano notwithstanding that the second respondent happened to be the parent company of the claimant’s employer. The second respondent was nonetheless a separate legal entity with its own corporate personality. To coin the words used by Gross LJ in the Court of Appeal decision of Arcadia Petroleum v Bosworth, there is no reason to apply a wholesale disregard of separate corporate personality between the group companies. In no way could it be said or is it necessary to infer or imply that a contract existed between the claimant and the second respondent (and even less so in relation to the third and fourth respondents for reasons I address below). Ms Medrano’s contract of employment was with the second respondent and in relation to her dealings with the claimant, she was acting at all times in accordance with the second respondent’s requirements as her employer and to whom she was answerable.[119]Likewise, the claimant was engaged and remunerated by the first respondent, under a contract of employment directly with it, to work in the global Corporate Development team, ultimately under the first respondent’s direction. Indeed, there exists an express written contract of employment between the claimant and first respondent. The fact that the claimant was required to undertake work for other group companies including the second respondent was part and parcel of her employment with the first respondent. Quite simply, it is why the first respondent employed her. The fact that Ms Medrano was employed by the second respondent to direct that work (and the work of all other members of the team employed by the numerous different group subsidiaries from across the world) is of no consequence with regard to the claimant’s true employment relationship and the reality of the employment situation.[120]The fact that the claimant was required to comply with Business Conduct Guidelines set by the second respondent to maintain global standards of conduct and ethics throughout all of its many international subsidiaries within the group, is (again) of no consequence. That was governed by the relevant term in the claimant’s contract of employment with the first respondent. Likewise, the need to maintain confidentiality in relation to all group companies was, again, governed by the terms of her contract with the first respondent. I agree entirely with the submissions on behalf of the respondents that this is standard practice in employment contracts in any event and could not possibly (or sensibly) create a contractual relationship between the claimant and the second respondent and/or every group company covered by it. I should add for completeness that the same applies for the need to enter any Non-Disclosure Agreements. This was and is part and parcel of the work she was and is engaged to do on behalf of the first respondent and in accordance with the terms of her contract of employment with it as her employer.[121]I should add that far from pointing away from an exclusive employment relationship between the claimant and the first respondent, the very fact that the dual management system exists in relation to the claimant’s employment (and others in a similar position to the claimant in group subsidiaries across the globe) serves to reinforce the contractual relationship with first respondent. Having an in-country manager and a functional manager demonstrates a clear intention, and in this case genuine divide, between who is responsible for the claimant’s employment terms and arrangements, namely the first respondent, and who is responsible for managing the services the claimant provides on behalf of her employer.[122]Need it be said, in the absence of any contract between the claimant and the second respondent, her assertion that she is or was a worker of the second respondent in the alternative is equally unsustainable.[123]During the course of the hearing I referred both parties to the case of United Taxis Ltd (see above) and invited submissions on the question of dual employment and the relevance of any domestic law. Indeed, the claimant had included in her bundle of authorities the cases of Viasystems (Tyneside) v Thermal Transfer (Northern) [2005] EWCA Civ 1151 and the substantive first instance decision in Forstater v CGD Europe and ors ET Case No.2200909/19.[124]As referred to in the law summary above, it is a well-established principle of domestic employment law that in general terms one employee cannot simultaneously have two employers. Likewise there is no basis upon which an employee of one undertaking can simultaneously be a worker of another undertaking, in respect of the same work at the same time. On the basis of the facts found in this case, there is absolutely no reason to depart from that general principle. Insofar as Viasystems appears to do so, it involved an issue of vicarious liability on the part of one of its contractors and an entirely different public policy consideration. Viasystems concerned the protection of the employer in that case and not workers or employees. As for Forstater, aside from the fact that this is a first instance decision which is not binding on this tribunal, the facts in that case were vastly different to the facts applicable in this matter. In this instance, as I have found on the evidence, the structural set up was such that the second respondent parent company was wholly independent of the first respondent and the very many global subsidiaries around the world. It could not plausibly be said that the first and second respondent operated as one of the same - far from it.[125]Turning to the other exceptions in which a group company may be found to be an ‘employer’ for the purposes of the Brussels I Regulation even where that same company is not a ‘formal employer’ as a matter of domestic law, again I am entirely satisfied that no such exception applies in this case.[126]As established on the evidence, there is no direct contractual relationship between the second respondent and the claimant of the kind in SamengoTurner and Petter. Notably in those cases, the concept of employment was stretched to protect employees from having actions taken against them. Even if a direct contractual relationship did exist in some way (which it does not), it is not necessary to apply any such approach in this case. The claimant has rights and remedies she is able to pursue against her actual employer, the first respondent, in the context of this claim.[127]As for the decisions in Cunico and Bosworth (which were, in themselves, fact sensitive) I have already established that there is no rational basis for implying or inferring a contract, informal or otherwise, between the claimant and the second respondent on the applicable facts in this case. The claimant has never held a position (again informally or otherwise) with the second respondent. The claimant has only ever been employed by the first respondent under the terms of an express contract and there is no reason to depart from that reality.[128]Accordingly, the second respondent was in no sense an employer of the claimant and was not the claimant’s employer for the purposes of section 15C CJJA 1982.[129]I can deal with the position regarding the third and fourth respondents (Ms Medrano and Dr Campbell) very quickly. I agree entirely with the respondents’ submissions that it is “plain as a pikestaff” (as Mr Forshaw KC put it on their behalf) that neither of these individuals could in any sense be said to be the claimant’s employer. These were individual employees of the second respondent, wholly separate from the first respondent. There is absolutely no basis for inferring any kind of contract between the claimant and employees of the second respondent. Even in the widest possible sense, they could not possibly be said to be the claimant’s employer for the purposes of section 15C CJJA 1982.[130]It follows from this that the tribunal has no jurisdiction to hear Claim 2 issued on 20 June 2023 under claim number 3307147/2023 (as this is pursued against the second respondent only) and that claim is struck out in its entirety.[131]The tribunal also has no jurisdiction to hear any complaints against the second, third and fourth respondents within Claim 3 issued on 30 October 2023 under claim number 3312516/2023 and all complaints against the second, third and fourth respondents in that claim are struck out in their entirety.[132]Having determined the issue of international jurisdiction, this disposes of all the remaining preliminary issues that were before me save as to the question of the extent to which complaints against the first respondent in Claim 3 issued on 30 October 2023 (claim number 33125165/2023) should have been brought earlier such that they cannot proceed.[133]Be that as it may, although academic, I make the following observations in relation to the issues of territorial scope and reasonable prospects of success that were advanced before me in the alternative. In many respects there is considerable overlap in relation to these two issues.[134]The second, third and fourth respondents were neither the claimant’s employer or co-workers of the claimant. Need it be said, it is a fact that the third and fourth respondents were employees of the second respondent and have never had any employment connection with the first respondent or the claimant. Accordingly, there is no claim that can be advanced in relation to s111 Equality Act 2010 because s111(7) is not satisfied. As separate corporate entities, the first and second respondents could not discriminate against each other (see Arvenescu v Quick Release (Automotive) Limited [2022] EAT 26). The first respondent could not unlawfully discriminate against the third and fourth respondents because, aside from living and working outside of the territorial reach of the Equality Act 2010, they are not (and never have been) its employees. As a matter of common sense, neither the third or fourth respondents could unlawfully discriminate against the first respondent. Therefore, even if there was international jurisdiction (which there is not), no such claims exist and cannot have any reasonable prospect of success.[135]Similarly, as a matter of fact, for the purposes of s47B(1A) ERA, neither the second or third respondents were agents of the first respondent (even in the wider sense under s43K ERA as contended for by the claimant) and in so far as the fourth respondent could be said to be an agent of the claimant’s employer (the first respondent), this is limited to her capacity as the grievance investigator. To be absolutely clear, I am satisfied on the facts found that neither the first or second respondent has ever been acting as agent for the other in relation to the claimant. Nor could it be said that the third respondent (Ms Medrano) was or has been acting as agent for the first respondent. She was (and is) acting at all times in her capacity as an employee of the second respondent, employed to strategically manage certain individuals within the Corporate Development team. Need it be said, the fourth respondent, Dr Campbell, was and is acting as an employee of the second respondent and not as an agent of the first respondent other than in her limited role of investigating the claimant’s grievance on the first respondent’s behalf.[136]Accordingly, with the exception of any claim that might arise out of the fourth respondent’s role as the first respondent’s grievance investigator (which I address below), no claims exist in relation to the second, third and fourth respondents and thus cannot have reasonable prospects of success.[137]As I have stated already, there is, of course, no international jurisdiction in any event but even if there was, from the above it is apparent that it is not necessary for me to address the territorial jurisdiction at all in relation to the second and third respondents because there can be no cause of action against them.[138]As for the fourth respondent, even if there was international jurisdiction entitling her to be a party to proceedings (which there is not), I agree with the submissions on behalf of the fourth respondent that the territorial scope of the EqA and ERA do not extend to enable a claim to be brought against her personally. It is not in dispute that the claimant lives and works in the UK. On my findings, she has only ever been employed by the first respondent, a UK company. Again, it is not disputed that the fourth respondent lives and works in the US and is an employee of the second respondent, a separate US corporate entity. Neither the claimant or the fourth respondent have had any prior involvement with one another. They have never worked with each other in any capacity and the only connection between them is the fact that the fourth respondent was appointed to investigate the claimant’s grievance. The fourth respondent was appointed specifically because she had no connection to the UK and thus no connection with UK employment law (and, for that matter, no connection to the claimant). Therefore, although the point is academic given the lack of international jurisdiction, the territorial scope of the legislation does not stretch to enable the claimant to bring a claim against the fourth respondent as a named individual. Importantly, this does not leave the claimant without a remedy because the first respondent has accepted that it is liable for the actions of the fourth respondent in her capacity as agent for the first respondent.[139]In her oral submissions on the matter of territorial scope, the claimant expressed concern that the first respondent’s acceptance of liability for conduct of the fourth respondent as its agent did not go far enough. I do not accept there is any real force in that position. Insofar as any territorial scope of the legislation extended to enable a claim to be brought against the fourth respondent personally, in my judgment this could only be in relation to her capacity as the grievance investigator, which the first respondent has accepted she was undertaking as its agent. Any conduct on the part of the fourth respondent that the claimant would otherwise seek to complain about would fall outside of that relationship and thus be outside of the scope of the legislation in any event. Conclusions as to Res Judicata and Henderson v Henderson principles[140]I turn now to the remaining issue of the ‘repetitive nature of proceedings’ forming part of the application by the respondents.[141]As will be obvious from the reasons above, I only need to address the complaints within the third claim because the second claim cannot proceed.[142]I remind myself that it is not a question of whether the claimant could have brought any of her claims in earlier proceedings but whether she should have done so. When addressing that question below I have applied a “broad, merits-based judgment”.[143]I interpose here that during the hearing I urged the parties, but particularly the claimant, to look to narrow the issues in dispute. I reminded all parties that pursuing weak points only usually serves to dilute stronger ones. The overriding objective set out in Rule 3 of the ET Rules 2024 is much more than a conceptual nicety – it is the bedrock that should underpin all tribunal claims – and the parties are obliged to follow it. There is real force in the submissions on behalf of the respondents that this case is getting out of control - quite unnecessarily. In my judgment, the claimant has overcomplicated the way in which these proceedings are being conducted. To date there is still no definitive list of issues in existence in these proceedings, and yet the claimant has already endured five PHs totaling 10 days before the tribunal in a dispute that she says is having an almost intolerable impact on her health. In all probability that can only be to her detriment. Need it be said, keeping cases as simple as possible is very often the key to success. Far from being to the benefit of the respondents, streamlining and focusing her claims is likely to be in the claimant’s own interests.[144]I am acutely aware that the claimant is a litigant in person and not a trained professional but her knowledge and command of the law is not simply impressive but exceptional in comparison to many unrepresented parties. As I have remarked already, the claimant is highly intelligent and articulate. Likewise, she has demonstrated a real proficiency in grappling with detail.[145]As identified in the reasoning below, the claimant has included in Claim 3 new factual allegations about matters that occurred prior to her issuing Claim 1. Despite being aware of the respondents’ application and the schedules attached to it for over ten months prior to this PH, she has offered no real explanation as to why she did not seek to advance these new allegations that pre-date Claim 1 in that initial claim. There can be no dispute that since her return to work in 2020, the claimant has been very vigilant in terms of the treatment she says she has been subjected to in the workplace. Consequently she would have been very aware of any detrimental treatment she says she was subjected to at the time it happened. For this reason I am not at all persuaded that the claimant inadvertently overlooked these new allegations when submitting Claim 1. Indeed, if these allegations were significant she should have included them in that claim. Lodging a new subsequent claim in this way as a method of expanding her previous claim is in my judgment an abuse of process of the kind referred to in Johnson and risks becoming a ‘war of attrition’. The first respondent is undoubtedly prejudiced because, having gathered all the necessary information and instructions needed to submit its defence to all the allegations in Claim 1, it is now faced with the prospect of having to revisit matters again, after significant delay, in an effort to address allegations in the context of those advanced in Claim 1. Expanding the claim in this way is also an affront to the overriding objective in Rule 3. It is for these reasons that I have reached the conclusions below about whether or not the following allegations should be allowed to proceed and to what extent.[146]Reference to the allegation numbers below is a reference to the numbering in the Schedule annexed to these reasons.[147]Allegation 1(1) is a duplication of Claim 1 and is struck out (as it can be pursued as part of Claim 1).[148]Allegations 2, 8 to 11 and 15 can only proceed in relation to acts of detriment said to have occurred on or after 16 October 2022 (for the avoidance of doubt to the extent that any part of the allegations are duplicated in Claim 1 they fall to be determined as part of Claim 1 only).[149]Allegation 3 (1) to (3) should have been brought in claim one and cannot proceed (they appear on the face of it to be out of time in any event).[150]Allegations 4 and 5 can proceed as on the face of it this is a continuing act that in reality did not start before 16 October 2022 given that the claimant’s original grievance was submitted on 5 July 2022 and would in all probability have required a matter of some months to investigate such that there could not have been a reasonable expectation of receiving an outcome before midOctober 2022.[151]Allegations 16 to 18 appear to be re-labelling or alternate labelling of factual allegations in Claim 1 as harassment. They can proceed as claims of harassment in so far as the claimant says each of these is a continuing course of conduct on the part of the first respondent (although it is unclear why or how this adds anything beyond what is alleged in claim 1 other than adding an extra layer of unnecessary complication – the claimant is reminded of the need for proportionality).[152]Allegations 19 to 24 and 26 all relate to acts that occurred prior to 16 October 2022. It seems the purpose of including them in Claim 3 is to enable an amendment to Claim 1 to label these acts as harassment in the alternative. Insofar as these allegations form part of claim 1 and can be pursued against the first respondent, the claimant is permitted to label them as harassment in the alternative. In essence I am granting an amendment to Claim 1 as there is no real prejudice to the respondent in doing so. I am not permitting them to proceed as part of Claim 3 as this is unnecessary duplication.[153]Allegation 25 is not re-labelling but is instead a new and very specific allegation that existed prior to claim one and is not permitted to proceed. The claimant has provided no explanation as to why this was not included in her first claim.[154]Likewise, allegation 27(2) and (3) are new and very specific allegations (and not re-labelling). 27(2) most certainly existed prior to claim one and is not permitted to proceed. Insofar as 27(3) occurred prior to 16 October 2022 that too is not permitted to proceed. The claimant has provided no explanation as to why these were not included in her first claim. As for 27(1) although this appears to be a re-labelling/alternate labelling of an existing factual allegation in Claim 1, I am not permitting it to proceed. Given the act complained about occurred in 2016, it is far from clear why this same factual allegation in Claim 1 (of victimisation and whistleblowing detriment) was not pursued as part of the Anstis Proceedings. I am not permitting the re-labelling of a claim that on the face of it should have been pursued in the proceedings prior to Claim 1 being issued. In my judgment that is without doubt an abuse of process that causes the first respondent significant prejudice given that they have lost the opportunity to gather and preserve evidence (including witness testimony) at the time when it could and should have formed part of the earlier Anstis Proceedings let alone Claim 1.[155]As for allegation 28, dealing first with 28(3), the claimant has failed to explain why or how she can bring an indirect discrimination claim by reference to a PCP that she says ceased to exist in 2015. That allegation/amendment is not permitted to proceed. As for the remaining PCPs relied upon in allegation 28, they are all said to exist in 2023 which post-dates Claim 1. What is not clear is how or why the claimant says any disadvantage did not occur prior to Claim 1 being issued despite the existence of these PCPs for many years, or, if it did, why this was not included as part of her earlier claim. Despite the ambiguity, I will allow this to proceed. In all likelihood the first respondent will not be significantly prejudiced if it transpires these complaints should have been advanced as part of Claim 1 because it will have an obvious time point to take in defence of them at the substantive hearing. I caution again about the need for proportionality and the good sense of not allowing weak claims to dilute stronger ones.[156]With regard to the allegations of direct sex discrimination, allegation 29 can proceed if it is said to have occurred after 16 October 2022 although it may still be out of time.[157]Allegation 30 appears to be said to amount to a course of conduct that continued in to 2023 and can therefore proceed but it nonetheless raises the question why such a claim was not pursued earlier by the claimant.[158]In relation to allegation 31, 31(2) and (3) are new allegations. 31(2) existed prior to Claim 1 and is not permitted to proceed. The claimant has offered no explanation as to why this was not included in Claim 1. As for 31(1) whilst this appears to be a re-labelling/alternate labelling of an existing factual allegation in Claim 1, I am not permitting it to proceed for the same reasons I have given in relation to 27(1). Given the last act complained about occurred in 2012, it is far from clear why this same factual allegation in Claim 1 (of victimisation and whistleblowing detriment) was not pursued as part of the Anstis Proceedings. Again, I am not permitting the re-labelling of a claim that on the face of it should have been pursued in the proceedings prior to Claim 1 being issued. Need it be said, allegation 31(3) can proceed.[159]Allegations 32 to 34, 36 and 38 all relate to acts that occurred prior to 16 October 2022. It seems the purpose of including them in Claim 3 is to enable an amendment to Claim 1 to label these acts as direct sex discrimination in the alternative. Insofar as these allegations form part of Claim 1 and can be pursued against the first respondent, the claimant is permitted to label them as direct sex discrimination in the alternative. In essence I am granting an amendment to Claim 1 as there is no real prejudice to the respondent in doing so. I am not permitting them to proceed as part of Claim 3 as this is unnecessary duplication.[160]Allegation 35 is not permitted to proceed unless it is said to have occurred after 16 October 2022.[161]Allegation 37 appears to be re-labelling or alternate labelling of a factual allegation in Claim 1 as direct sex discrimination. This can proceed in so far as the claimant says it is a continuing course of conduct on the part of the first respondent extending up to October 2023.[162]Allegations 39 to 41 cannot proceed for lack of jurisdiction.[163]Allegation 42(1) should have been pursued as part of claim 1 and is not permitted to proceed. Given the lack of jurisdiction of the second to fourth respondents, allegations 42(2) to (6) can only proceed in so far as these are complaints that can be made against the first respondent.[164]For the avoidance of doubt, allegations 6, 12 to 14 and 43 can proceed.[165]Further case management will take place at the hearing listed for 18 June 2025. The parties must work together to agree a list of issues in advance of that hearing. The list should identify precisely which claims are brought under Claim 1 and which are brought under Claim 3 as this could have a bearing on whether or not certain claims are in time. Further case management[166]I am aware that the claimant says that for reasons of her health and wellbeing she is unable to engage with the respondent’s representatives within 14 days of any hearing. I am not in any way dismissive of any health and wellbeing challenges confronting the claimant, but that inevitably presents obvious practical difficulties given the nature of litigation and the urgency that can often arise in dealing with unexpected matters at short notice. It would be helpful and probably in the claimant’s own interests if she was able to give some thought to any practical arrangements or support she might be able to put in place to enable channels of communication to remain open in the lead up to the next hearing. For example, the claimant is entitled and encouraged to appoint a representative to act on her behalf if this is likely to be beneficial.[167]As I have referenced above, these proceedings have already become protracted and for the claimant’s own benefit that needs to cease. If the current listing for 20 days in November is to remain on track, the parties must agree (or at least substantively agree) a list of issues in advance of the PH next month. The respondent is represented and it therefore makes sense for the respondent’s representatives to prepare a draft list of issues in the format that the tribunal would expect and send it to the claimant for her to review and approve. This should not become a contentious exercise and the parties must work together constructively to achieve this objective. Approved by SCHEDULE Claim 1 application to predate the Claimant’s against Rs 2- 1 On 16 October 2022. amend Claim 1 issuing of application to 43 2 On 3 November 2023. 3 The Respondent accepts Victimisation / PIDA Detriment Claims that claims under section 110 of the EqA 2010 and
The Relevant Law
[1]In the period September 2020 to October 2020, November to ✔ ✔ ✔ ✔ section 47B(1A) ERA 1996 December 2022 and on 2 October 2023, Rs1-3 imposed or attempted (in respect of (in respect of can be brought against to impose changes to C’s role and did so without appropriate (1)) (1)) employees/workers or consultation or consent, as follows: agents of IBM UK, but denies that other than to the(1) the move from Acquisition to Divestitures; limited extent admitted in(2) the move from Divestitures to Project Managers; relation to the Fourth(3) revoking, or attempting to revoke, the position agreed on 13 June Respondent in Claim 3, 2023 that C’s role sat in Gina Sandon’s organisation, with C none of the Second, Third taking functional direction from Ms Sandon. or Fourth Respondent was an employee, worker or[2]In the period September 2020 onwards, Rs1-4 failed to provide C ✔ ✔ ✔ agent of the First with: (in respect of Respondent. See paragraph (1) and (2) for 21 of the Application dated(1) clarity on key aspects of her employment, including her role, job matters in the 3 May 2024. In any event description, manager(s), and the ‘Lotus Terms’ protected under period to 16 Rs2-4 dispute that any TUPE, despite her repeated requests. This left her in a prolonged October 2022) claims can be pursued state of uncertainty regarding her employment terms; against them having regard(2) written notification of changes to her employment within one to principles of month of: (i) her move from Acquisitions to Divestitures; (ii) the international jurisdiction move from Divestitures to Project Managers; and (iii) the move and territorial scope. from Project Managers to Ms Sandon’s organisation; (iv) C’s requests in May 2023 relating to her employment terms and seeking clarity regarding the Lotus Terms; and (v) queries directed to Mr Hughes, Ms Medrano, Mr Cattaneo, Dr Campbell Ms Hodson and Ms Pearson.[3]From October 2020, Rs1-4 failed to review adequately and to update ✔ ✔ ✔ C’s job code, failing to consider her technical skills, experience and (in respect of responsibilities, as outlined in R’s guidance to managers: (1), (2) and (3))(1) in October 2020 upon her return to work and move to Divestitures (Rs1-2);(2) in March 2021 after C’s request for a pay equity review (Rs1-2);(3) in July 2022 following C raising equal pay concerns in a grievance (Rs1-4);(4) in the period 2022 to 2023 in the course of a review of job codes within Corporate Development (Rs1-3).[4]In the period 5 July 2022 to 24 August 2023 Rs1,2 and 4 failed to ✔ ✔ ✔ follow a fair process or deliver a fair outcome to the grievance raised (in respect of by C or to provide her with an outcome without unreasonable delay. the period to[5]In the period 23 September 2022 to 9 June 2023 Rs1,2 and 4 failed to ✔ ✔ ✔ follow a fair process or deliver a fair outcome to the grievance raised (in respect of by C on 23 September 2022 or to provide her with an outcome without the period to unreasonable delay, or to provide information about her right to appeal 16 October and the appeal process. 2022)[6]In the period 1 February 2023 to 26 June 2023 Rs1-4 obstructed C’s ✔ ✔ phased return to work.[7]In the period 5 October 2022 to 24 August 2023 Rs1-4 shared C’s ✔ ✔ mental health data entrusted to Dr Campbell with their legal representatives without C’s consent.[8]In the period October 2020 to October 2023 Rs1-4 failed to take steps ✔ ✔ ✔ ✔ to support C’s mental health and took actions which caused her (in respect of the (in respect of stress. period to July the period to 2022) 16 October[9]In the period 29 March 2021 to October 2023 Rs1-4 failed to provide C ✔ ✔ ✔ ✔ with information to allow C to assess the extent of any inequality in (in respect of the (in respect of pay. period to the period to September 16 October 2022) 2022)[10]In the period October 2020 to October 2023 Rs1-3 failed to offer or ✔ ✔ ✔ ✔ provide C with appropriate and meaningful work aligned to her (in respect of the (in respect of technical and go-to-market skills and experience and to her band. period to August the period to 2021) 16 October[11]In the period March 2022 to October 2023 Rs1-3 failed to provide C ✔ ✔ ✔ ✔ with information about the promotion process, any skill gaps and/or (in respect of the (in respect of support her in promotion to Band 10 or to consider her for financial period to the period to October 2022) rewards related to high performance, including restricted stock 16 October options. 2022)[12]In the period January 2023 to October 2023 Rs1-4 failed to address a ✔ ✔ conflict of interest asserted by C concerning legal representation by CMS.[13]On 2 October 2023 Ms Medrano (R3) sent an email which stated that C ✔ ✔ would not move to Software M&A with Ms Sandon’s teams and indicated that her reporting line would be into Mr Hughes, which was designed to or had the foreseeable effect of intimidating C shortly before she was due to give evidence in an age discrimination claim against R1.[14]In the period April to October 2023 Rs1-3 offered to engage in ✔ ✔ facilitated discussions with C, but R’s offer was not a genuine attempt to settle matters raised by C.[15]In the period May 2022 to October 2023 Rs1-4 introduced and ✔ ✔ ✔ perpetuated delays in essential actions required to address and (in respect of resolve issues raised by C within a reasonable timeframe. the period to Harassment Claims[16]From August 2020 R failed to accept or acknowledge the ET’s ✔ ✔ ✔ ✔ ✔ findings in the 2020 case. (as a[17]From August 2020, R failed to apologise to C including for the ✔ ✔ ✔ ✔ ✔ victimisation found by the ET or for a senior manager referring to her (as a as a “mother hen”. victimisation /[18]From September 2020, R failed to provide C with appropriate ✔ ✔ ✔ ✔ ✔ information about the actions it was taking in consequence of the (as a ET’s judgment. victimisation /[19]In September 2020 R failed to incorporate risks highlighted by C into ✔ ✔ ✔ ✔ ✔ a risk assessment and to propose adequate measures to address them. (as a[20]In September to October 2020 R imposed a move on C ✔ ✔ ✔ ✔ ✔ to (as a Divestitures. victimisation /[21]From October 2020 to August 2022 R failed to provide C with ✔ ✔ ✔ ✔ ✔ meaningful work projects and stretch assignments or to support her in (as a accessing career opportunities, promotion or mentors. victimisation /[22]From February 2017 onwards R failed to take steps to mitigate the ✔ ✔ ✔ ✔ ✔ adverse effects on C due to her extended absence from work between (as a February 2017 and October 2020 as a result of victimisation. victimisation /[23]In March 2021 R failed to promptly or thoroughly or fairly address C’s ✔ ✔ ✔ ✔ ✔ request for an equal pay review in March 2021 and failed to provide (as a requested data. victimisation /[24]In October 2021 and March 2022 C’s manager made patronising and ✔ ✔ ✔ ✔ ✔ discriminatory remarks including that C’s tone was “not nice” nor (as a “pleasant” and that she needed to “keep the green eyed monster victimisation / under control”. whistleblowing[25]In February 2022 R’s top executives initiated “top down messaging” ✔ ✔ ✔ ✔ which identified its “dated maternal workforce” as “a threat” to the business and failed to address C’s concerns about anti-mother bias or to provide assurance that they did not discriminate against women who were mothers.[26]In March 2021 to October 2022 R repeatedly refused to address C’s ✔ ✔ ✔ ✔ ✔ concerns of a hostile environment and that she had been subjected to (as a further victimisation. victimisation /[27]In the period August 2016 to October 2023 R failed to ensure that C’s ✔ ✔ ✔ ✔ ✔ job codes accurately reflected her role and technical and client facing (in respect of expertise. She was miscoded: (1), as a(1) as a generalist in 2016; whistleblowing(2) when R failed to verify her job code on her move to Divestitures detriment claim) in 2020; and(3) when an overall review was conducted in Corporate Development in 2022. Indirect Discrimination – PCPs[28]C relies on the following PCPs: ✔ ✔ ✔ ✔(1) in the period 2008-2023, R’s job postings for Band 9 software (in respect of (in respect of the technical toles were predominantly posted as open to full-time the period to period to 3 employees and rarely as full-time or part-time; 16 October November 2023)(2) in the period 2008-2023, R’s job postings for Band 9 software ✔ ✔ ✔ ✔ technical roles were predominantly posted mandating a degree in (in respect of (in respect of the computer science or related STEM subjects; the period to period to 3(3) in the period 2008-2015 a practice of allocating full quota to ✔ ✔ ✔ ✔ software incentive-based roles, without a clear and simple process in place to ensure that part-time workers either received a pro-rata target or received a full bonus;(4) in the period 2005-2023 a practice of not carrying out regular ✔ ✔ ✔ ✔ reviews of job codes for accuracy and alignment with R’s (in respect of (in respect of the guidelines that job code allocation should consider the skills and the period to period to 3 experience of the employee as well as the role undertaken; November 2023)(5) in the period 2011-2023 a practice of using artificial intelligence to ✔ ✔ ✔ ✔ assess employee skills and attrition risk, and allocating (in respect of (in respect of the managers non-transferable budgets for salary increases, for the period to period to 3 specific named employees; 16 October November 2023)(6) in the period 2005-2023 a practice of not clearly communicating ✔ ✔ ✔ ✔ an employee’s position on the payscale for their role, or of (in respect of (in respect of the communicating salary ranges for roles when advertising roles the period to period to 3 internally. 16 October November 2023) Direct Discrimination[29]R did not provide equal promotion opportunities for female Band 9 ✔ ✔ ✔ ✔ Technical Sales managers compared to their male counterparts. (in respect of (in respect of the the period to period to 3[30]R failed to undertake reviews to identify and address any historic sex ✔ ✔ ✔ ✔ discrimination which resulted in C being paid a lower reference (in respect of (in respect of the salary than male peers in the period 2006 to 2023. the period to period to 3[31]R failed to ensure that C’s job codes accurately reflected her role and ✔ ✔ ✔ ✔ ✔ technical and client-facing expertise in the periods:(i) June 2006 to (in respect of (i), (in respect of (in respect of (i), February 2012 when C was miscoded as a generalist;(ii) on her move as a (i) and (ii) (ii) and(iii) to Divestitures in 2020; and (iii) when conducting an overall review in victimisation / Corporate Development in 2022 to 2023. whistleblowing[32]R proposed an increase to C’s reference salary in 2017 but then failed ✔ ✔ ✔ ✔ ✔ to apply it. (as part of C’s equal pay claim)[33]C’s absence from work in the period 2017 to 2020 (as a result of ✔ ✔ ✔ ✔ ✔ victimisation from R) negatively impacted her career progression and (as a reference salary and R failed to take steps to mitigate this on C’s return victimisation / to work in October 2020. whistleblowing[34]R imposed on C a move to Divestitures in October 2020. ✔ ✔ ✔ ✔ ✔ (as a[35]R wrongly classified C as ‘low skill’ in its HR systems, impacting on ✔ ✔ ✔ ✔ her pay. (in respect of (in respect of the the period to period to 3[36]R failed to promptly and adequately address C’s request for a review ✔ ✔ ✔ ✔ ✔ of her pay after C raised concerns in March 2021. (as a 4 R does not include paragraph 114c Claim 1 application to predate the Claimant’s against Rs 2- because R asserts without prejudice privilege in relation to the same.[37]R failed to provide C with meaningful work projects and stretch ✔ ✔ ✔ ✔ ✔ assignments or to support her in accessing career opportunities, (as a (in respect of promotion and mentors in the period October 2020 to October 2023. victimisation / the period to whistleblowing 16 October detriment claim 2022) in the period to October 2022)[38]R failed to provide C with information about the promotion process, ✔ ✔ ✔ ✔ ✔ any skill gaps and/or to support her promotion to Band 10, which (as a (in respect of (in respect of the would have resulted in a higher reference salary. victimisation / the period to period to 3 whistleblowing 16 October November 2023) detriment claim 2022) in the period to October 2022) Instructing, causing or inducing discrimination[39]R2 instructed, caused or induced R1 to: ✔ ✔ ✔ Not a valid(1) terminate C’s employment following the bringing of proceedings (in respect of(2) (For (2) and (For (2) and (4), claim against under EqA 2010; and (4), as a (4), and for (1) and for (1) in any (2) tell C (via Lynn Scott) that R did not accept or acknowledge the victimisation / in respect of respect of the Respondents findings of the 2020 judgment; whistleblowing the period to period to 3(3) […]4 detriment claim) 16 October November 2023)(4) tell C (via Lynn Scott) that C was not experienced enough to resume her role in Acquisitions and instead should move to the Divestitures team.[40]R1 instructed, caused or induced Rs2-4 to subject C to Detriments 1- ✔ ✔ ✔ Not a valid 15. (as a (as highlighted claim against victimisation / in the any whistleblowing “Victimisation Respondents detriment claim / PIDA as highlighted in Detriment the Claims” “Victimisation / section above) PIDA Detriment Claims” section above)[41]R3 instructed, caused or induced R1 to fail to assign to C local first ✔ Not a valid line management support and/or not to undertake a stress risk (in respect of the claim against assessment. period to 3 any November 2023) Respondents Failure to provide written statement of changes to terms and conditions of employment[42]R failed to provide C with written statement of changes to her terms ✔ ✔ ✔ and conditions of employment: (in respect of(1) (1) on her move from Acquisitions to Divestitures in October 2020;(2) on her move from to Project Managers in December 2022;(3) on 13 June 2023 when C alleges that she was informed that she reported to Gina Sandon;(4) in response to C’s requests in May and June 2023 where C sought clarity as to the ‘Lotus Terms’;(5) in response to emails sent to Ms Medrano, Dr Campbell and Ms Hodson in the period October 2022 to September 2023;(6) in response to an email sent by the Claimant to Ms Pearson on 16 October 2023.[43]C seeks a determination as to her terms and conditions relating to the ✔ following matters:(1) enhanced redundancy terms;(2) redundancy pension contributions policy;(3) sickness policy;(4) sabbatical entitlement;(5) birthday champagne;(6) personal accident insurance;(7) death in service benefit;(8) current job role, job description, team and organisation and job code.