Mr T SmithClaimantStena Drilling PTE LimitedRespondent
Before
Employment Judge J M HendryDate 14 March 2025
JUDGMENT
[1]The Tribunal has no international jurisdiction to hear the claim for unfair dismissal.[2]The Tribunal has no international jurisdiction to hear the claim for disability discrimination.[3]The claims are accordingly dismissed. E.T. Z4 (WR)
REASONS
[1]The claimant was dismissed in October 2021. He raised proceedings for disability discrimination and unfair dismissal. The two claims were opposed by the respondent company. The case proceeded to a hearing on whether or not the Tribunal had jurisdiction to entertain the claims. The Tribunal found that it did have jurisdiction in its Judgment issued on the 10 June 2022.[2]The respondent, Stena Drilling PTE Limited (“PTE’’), appealed the decision. The appeal was successful and both matters remitted back to the Tribunal.[3]A hearing took place on the 12 December 2024. Issues[4]The EAT Judgment recorded that the issue of international jurisdiction required to be reheard and, ‘‘if necessary’’, territorial jurisdiction over the Equality Act claim should be reheard. The ET had been entitled to find that the ERA claim fell within its jurisdiction by virtue of the cases of Lawson and Ravat but that it had erred in relation to the application of s199(7) of ERA, in reality it appeared that the claimant worked wholly outside Great Britain and therefore s199(7)(b) was not satisfied.[5]The Tribunal had erred in relation to its finding that the EqA claims fell within the territorial scope of the tribunal by virtue of regulation 3 of the 2011 Regulations, because the claimant ostensibly worked wholly outside Great Britain and so reg 3(1) was not satisfied. The case was duly remitted to the same consider of new the issues of international jurisdiction and, if necessary, territorial scope in relation to the EqA claim.[6]Much of the evidence had been agreed in a comprehensive statement of facts submitted for the original Tribunal hearing. In summary the respondent ‘‘Stena PTE’’ or ‘‘PTE’’ argued that the claimant had been employed by the respondent a company which was incorporated and based in Singapore and that throughout his employment he had been deployed to work internationally and had not worked in the UK since 29 August 2011. They further contended that more recently the claimant had been assigned to work in the Bahamas. Their position was that his contract of employment was subject to the law of Singapore being the agreed law specified there. Evidence[7]The Statement of Facts submitted for the initial hearing is replicated below.[8]In relation to the hearing following the appeal the Tribunal heard evidence from Ms Amy Louise Boston an HR manager with Stena Drilling HR Ltd (‘‘SDHR’’) and from the claimant. It also heard evidence from the claimant.[9]The focus of the evidence was on the role of SDHR and the interrelationship between that entity and PTE particularly in recruitment of staff such as the claimant and the reality of who was in control of that process. Findings in fact and statement of agreed facts 1 THE RESPONDENT AND THE STENA GROUP1.1 The respondent is a company incorporated in Singapore with a place of business at 30 Pandan Road in Singapore.1.2 The respondent is a subsidiary of Stena AB a company incorporated in Sweden.1.3 The respondent is part of the wider Stena group of international companies (the “Stena Group”) which owns and operates a number of vessels that are utilised to support the drilling of oil and gas wells offshore in deep sea locations.1.4 Austen Maritime Services PTE Limited (“AMS”) - with whom the Claimant was employed between November 2012 and June 2021 - is also a company incorporated in Singapore and part of the Stena Group.1.5 Throughout the course of the claimant’s employment, Stena Drilling HR Limited (a Company incorporated in the United Kingdom) carried out payroll, HR administration and benefit services on behalf of the respondent and Austen Maritime Services PTE Limited. They did so pursuant to a commercial agreement with both companies. A copy of the commercial agreement between Stena Drilling HR Limited and the respondent is available at productions 26 (page 177) and 32 (page 194) of the bundle. While a copy of the commercial agreement between Stena Drilling HR Limited and Austen Maritime Services PTE Limited is available at productions 27 (page 181) and 31 (page 188) of the bundle. 2 THE CLAIMANT 2.1 The claimant is a British Citizen, he was married in the UK and both of his children were born in the UK. The claimant owns a property in Liverpool, United Kingdom. 3 OVERVIEW OF THE CLAIMANT’S EMPLOYMENT3.1 Throughout the claimant’s employment with the respondent and AMS, the claimant worked aboard vessels which were owned and operated by entities within the Stena Group. Specifically, the claimant worked aboard the following vessels:3.1.1 The Stena Spey – a vessel flagged in the United Kingdom with its registered port in London in the United Kingdom. A copy of the Stena Spey’s current registration certificate for the purposes of the Merchant Shipping Act 1995 is available at production 37 (page 202) of the bundle). 3.1.1 The Stena Spey – a vessel flagged in the United Kingdom with its registered port in London in the United Kingdom. A copy of the Stena Spey’s current registration certificate for the purposes of the Merchant Shipping Act 1995 is available at production 37 (page 202) of the bundle).3.1.2 The Stena IceMax – a vessel flagged in the United Kingdom with its registered port in Aberdeen in the United Kingdom. A copy of the Stena IceMax’s current registration certificate for the purposes of the Merchant Shipping Act 1995 is available at production 39 (page 205) of the bundle).3.1.3 The Stena DrillMax – a vessel flagged in the United Kingdom with its registered port in Aberdeen in the United Kingdom. A copy of the Stena DrillMax’s current registration certificate for the purposes of the Merchant Shipping Act 1995 is available at production 36 (page 200) of the bundle).3.2 The claimant worked on a rotational basis consisting of periods of working aboard vessels and periods of leave when he was not required to work. Typically, the claimant worked rotations of 28 days working aboard the vessel he was assigned followed by 28 days leave when he was not required to work. However, during the course of 2020 and 2021 there were variances to the length of the rotations the claimant was assigned to work to cope with the impact of the COVID-19 pandemic.3.3 During his employment with both the respondent and AMS the claimant was paid in pounds sterling.3.4 During his periods of working, the claimant received day to day operational instructions from other crew members who also worked aboard the vessels he was assigned. The other crew members the claimant took his instructions from were employees of either the respondent or AMS.3.5 The vessels which the claimant worked on are semi-submersible drill rigs and drill ships which can be moved to various offshore locations around the world to support the drilling of oil and gas wells offshore in deep sea locations. Shallow water and deep water as well as being stacked up alongside in shipyards.3.6 The claimant was a seafarer/mariner.3.7 All vessels the claimant has worked on during his employment with the respondent and AMS, adhered to the Merchant Shipping UK regulations which implemented provisions of the Maritime Labour Convention.3.8 On commencement of employment in 2011, the claimant was assigned to work aboard a vessel in UK waters. A table summarising the vessels and location of the claimant’s assignments throughout his employment with the respondent and AMS is available at production 34 (page 197) of the bundle.3.9 Since 2011, the claimant was assigned to work in the following locations:3.9.1 South Korea;3.9.2 French Guyana;3.9.3 USA3.9.4 Canada;3.9.5 Canary Islands – including Las Palmas on numerous occasions as Rig Pool Crew, when the Vessel was in the shipyard, Whilst in Las Palmas, the claimant was able to leave the vessel each evening.3.9.6 Ireland;3.9.7 Cyprus;3.9.8 Israel;3.9.9 Gibraltar; and3.9.10 Bahamas.3.10 The final rotation the claimant completed, before his period of absence, was aboard the Stena IceMax at a location in the Bahamas in 2020. The claimant returned from the Bahamas to the UK on the 18th of December 2020. The claimant’s onward travel to France was cancelled at the claimant’s request as his Mother-in-Law passed away.3.11 The claimant’s next rotation was due to commence in January 2021 again aboard the Stena IceMax at a location in the Bahamas. Prior to joining the vessel and per client requirements as a result of COVID-19, the claimant was required to self-isolate in a hotel in London, UK for a period of 7 days and then fly to the Bahamas from a London Airport, UK. The claimant did not complete that rotation after having a panic attack at the hotel, before entering the isolation period.3.12 Having been unable to mobilise to the Stena IceMax for his assignment in January 2021, the claimant commenced a period of sickness absence.3.13 The claimant, was dismissed on capability grounds on 7 October 2021. 4 CLAIMANT’S EMPLOYMENT HISTORY Employment with the respondent (July 2011 – October 2012)4.1 The claimant commenced working for the respondent on 18 July 2011 and was employed as a Derrickman. At the time the claimant resided at 41 Moss Street, Liverpool in the United Kingdom. A copy of the claimant’s employment contract with the respondent is included at production 7 (page 70) in the bundle.4.2 During the periods between July 2011 and October 2012 when the claimant resided in the UK and was employed by the respondent, the claimant received payments from the respondent subject to deductions for UK income tax and national insurance contributions. Employment with AMS (November 2012 – June 2021)4.3 In November 2012, the claimant changed his registered address to 105 Route Pommiers, UBIDOCA Center, Saint-Martin-Bellevue in France.4.4 At or around the time the claimant changed his registered address to the above address in France, the claimant entered an employment contract with AMS which commenced on 1 November 2012. A copy of the claimant’s employment contract with AMS is included at productions 14 (page 87) and 15 (page 117) in the bundle and provides that it shall be construed and interpreted in accordance with and under the Laws of Singapore.4.5 During his period of employment with AMS the claimant was promoted to an Assistant Driller in 2013. The claimant was accordingly issued with an updated AMS employment contract which he signed on 6 January 2014. A copy of the contract is included at production 16 (page 120) in the bundle and provides that:4.5.1 The claimant’s terms and conditions of employment shall be governed by and construed in accordance with the Laws of Singapore; and4.5.2 The contract was entered into in Singapore.4.6 The claimant was issued with an updated AMS employment contract which was signed by the claimant on 22 June 2018. A copy of the contract is included at production 18 (page 131) in the bundle and provides that:4.6.1 The claimant’s terms and conditions of employment shall be governed by and construed in accordance with the Laws of Singapore; and4.6.2 The contract was entered into in Singapore.4.7 The claimant was subsequently promoted to Junior Driller in 2019. To that end, the claimant was issued with a further updated AMS employment contract which he signed on 12 December 2018. A copy of the contract is included at productions 20 (page 150) and 21 (page 159) in the bundle and provides that:4.7.1 The claimant’s terms and conditions of employment shall be governed by and construed in accordance with the Laws of Singapore; and 4.7.1 The claimant’s terms and conditions of employment shall be governed by and construed in accordance with the Laws of Singapore; and4.7.2 The contract was entered into in Singapore. The claimant was working under this AMS employment contract at the time he was assigned to the final work rotation about the Stena IceMax in the Bahamas referred to at 3.10 above.4.8 Throughout the period the claimant was employed by AMS and spent his non-working days between France and the United Kingdom. The claimant was paid without deduction of UK tax. Copies of the claimant’s AMS payslips from the period between January 2020 up until the end of the claimant’s employment with AMS are included at productions 57 (page 228) to 79 (page 250) in the bundle.4.9 Throughout the period the claimant was employed by AMS, the claimant was a non-resident for UK tax purposes. The claimant’s period of sickness and his employment with the respondent (January 2021 – October 2021)4.10 On the 31 May 2021, during the claimant’s capability meeting with Kirsty Burr, the claimant informed Kirsty, that he was looking to permanently reside in the UK. On 23 June 2021, the claimant formally confirmed via email that he would be moving back to the UK and to the address 299 Mather Avenue in Liverpool.4.11 In light of the claimant’s return to the UK, the claimant entered a new employment contract with the respondent which commenced from 30 June 2021. A copy of the contract is included at production 23 (page 166) in the bundle and provides that:4.11.1 The claimant’s terms and conditions of employment shall be governed by and construed in accordance with the Laws of Singapore; and4.11.2 The contract was entered into in Singapore.4.12 The claimant remained employed with the respondent from 30 June 2021 until his dismissal on 7 October 2021. However, he remained off work, due to ill-health and undertook no work rotations during that period.4.13 During the time of sickness, the claimant attended occupational health appointments and capability meetings, hearings and his dismissal meetings, with individuals in the UK which took place via video conference.4.14 Following the claimant’s return to the UK, from July 2021 up until his dismissal in October 2021 the claimant received any payments due from the respondent, including 10 weeks PILON, subject to deductions for UK income tax and national insurance contributions. Copies of the claimant’s payslips from this period are included at productions 75 (page 246) to 79 (page 250) in the bundle. Additional Findings following Remit[10]Stena Drilling Ltd manage drilling vessels. They are part of the ‘‘Stena Group’’. They employ staff in Aberdeen but no offshore staff. PTE is a crewing company that provides offshore staff originating from the UK. AMS is a related crewing company that provides staff who originate outside the UK. The companies in the group are separate legal entities. They have separate management structures. Neither PTE nor AMS have offices in the UK. They are based in Singapore where they have offices and where their management is based. The London address used when raising the proceedings is the address of a different ‘Stena’ company in the group.[11]SDHR provides HR services. They deal with the recruitment of staff for PTE and AMS. The recruitment process has remained broadly unchanged for many years. As the recruitment takes place in Aberdeen SDHR arrange interviews and deal with the routine aspects of recruitment. The interview panel has someone senior from Stena Drilling Ltd on it to provide technical support. A member of the PTE management does not normally participate but the Rig Manager who is recruiting for their vessel can take part of the process and give their views. Candidates are shortlisted and the names sent to PTE for approval.[12]SDHR is not part of the structure of the company PTE. PTE was the undertaking which employed the claimant in 2011 and again in 2021. It is a separate company with its own Board of Directors and there is no overlap between these Directors and those of SDHR (JBp175). The functions and powers SDHR are determined and limited by the services agreement (and other agreements) it has with PTE and other companies within the Stena group. (JB 177-180). The service agreements between SDHR and PTE and AMS are broadly similar.[13]SDHR is not an entity over which PTE exercise control and, to the extent that either entity had any contractual obligations to the other under the terms of the Services Agreement that was as a result of that entity choosing to enter into such contractual obligations.[14]Job opportunities with PTE are advertised on the Stena Drilling Ltd website.[15]When SDHR are recruiting for PTE the applications are considered by PTE. It is commonplace particularly where the post being recruited for is a senior post for SDHR to receive feedback from Rig Managers or other senior staff employed by PTE about their knowledge and experience of the suitability of candidates and their preferred candidate. Rig Mangers have to work closely with those recruited. PTE recruits a particular candidate. SDHR have no power to vary terms and conditions of candidates or to negotiate terms with them. The rates of pay are set by international agreement.[16]On the 19 July Christina Gordon from Stena sent an email to HR in Singapore asking a Ms Duda to write to the claimant urgently updating his Seafarer’s Agreement and advising that he was now living in the UK his contract had to transfer from AMS to PTE (SB88). The claimant received an email from a Mr Melo based in Singapore on the 19 July updating his Seafarer’s Agreement on behalf of PTE (SB102). The agreement was signed by a Mr Tanwar a Director of PTE based in Singapore.[17]The claimant’s final contract prior to his termination with PTE was as a Junior Driller aboard the IceMAX. It was finalised in July 2021 (SBp16). In the termination letter from SDHR they referred to themselves as ‘agents’ for PTE. Witnesses[18]I found Ms Boston to be generally credible and reliable. She was an honest and professional witness who gave evidence from her experiences working for SDHR since 2013. She had an understanding of the recruitment processes in which SDHR were involved and firsthand knowledge of receiving feedback from senior management and Rig Managers working for PTE.[19]The claimant was an honest and straightforward witness who gave clear evidence of events from his perspective. However, and there is no criticism of him in this observation, he was not party to what happened ‘‘behind the scenes’’ in relation to the way in which the various companies in the Stena Group interacted. Overall, his evidence was credible and reliable in relation to matters within his knowledge. Submissions[20]Both Counsel lodged lengthy written submissions which they then spoke to following the conclusion of evidence. The Tribunal had the assistance of a Bundle of Authorities.[21]It was accepted that following the UK withdrawing from the European Union on 1 January 2020 pursuant to s15C of the Civil Jurisdiction and Judgments Act 1982 the UK courts must still have regard to relevant principles laid down by the European Court as toe meaning or effect of s15 (C) I will set out their respective positions in a little detail given the complexity of the law in this area. Neither made additional submissions in relation to the territorial jurisdiction issue. Claimant’s Position[22]Mr Bunting accepted that the only route to establishing international jurisdiction was through Section 15 C of the Civil Jurisdiction and Judgments Act. He pointed out that the ET had been entitled to find that the ERA claim for unfair dismissal fell within the Tribunal’s jurisdiction. The issue was whether the claimant worked wholly outside the UK and whether s199(7)(b) had not been satisfied. He noted that the same general test for territorial jurisdiction applied to claims under the ERA and EqA (Hottack and Ano v Secretary for State for the Foreign and Commonwealth Affairs and Ano (2016) ICR 975). The only issue therefore was international jurisdiction.[23]Counsel summarised the facts with reference to the EAT decision he then referred to the claimant’s recruitment and the contracts he had been issued. The recruitment process had been conducted by SDHR staff in Aberdeen. His principal submission was that there was no meaningful input from PTE in Singapore. He considered the terms of s15C of the Civil Jurisdiction and Judgments Act (‘‘CJJA’’) and the ordinary meaning of the terms used: ‘‘branch, agency and establishment’’.[24]He then turned to consider international jurisdiction and the task the Tribunal had to conduct following the remit from the EAT. Lord Fairly in his Judgment had made reference to the case of Voogsdgeerd v Navimer (2011) EUECJ C-384/10 (‘‘Voogsgeerd’’) and the meaning of the place of business that engaged the employee. The Tribunal needed to look at the real position and carefully consider the recruitment process and the role of SDHR and PTE.[25]Counsel made reference to the ECJ case of Establissements Somafer SA v Saar-Ferngas (1979) 1 CMLR 490 and the requirement of an agency to ‘‘negotiate’’ business as he suggested SDHR did here. This submission prompted an intervention for Mr Napier who said that his position was that the issue of agency had been disposed of in the original ET Judgment and not subject to the remission.[26]Mr Bunting referred to the letter dismissing the claimant (SB p245-248) where the word ‘‘agent’’ was repeatedly used. SDHR’s role was that of a branch, agency or establishment and accordingly the Tribunal had international jurisdiction. In terms of s15C(2)(c) the claimant was engaged in the UK. He then set out the relevant EU legislation the ‘‘Rome Convention’’ which deals with territorial jurisdiction and the ‘‘Brussels/Lugano’’ regime that deal with international jurisdiction) pointing out that the regimes in operation sought to protect the ‘weaker parties’ and that in matters of interpretation the courts had to err on the side of offering greater rather than less protection. Both regimes had similar wording. He then considered the case of Voogsdgeerd and the concept of the place of business through which an employee was engaged.[27]In summary to establish a place of business under s15C the secion referred exclusively to the place of business that engaged the employee and not where the actual employment takes place. It does not need a freestanding legal personality. It can still be the employer’s place of business even if it is the place of business of a different undertaking and even if formal authority has not been transferred to it. An undertaking other than the employer may be a place of business if there are objective factors enabling an actual situation to be established different from that appearing in the contract. In Voogsdgeerd it was said that the court should look at the factors ‘‘relating to the procedure for concluding the contract, such as the place of business that published the recruitment notice and that which carried out the recruitment interview, and it must endeavour to determine the real location of that place of business’’ .[28]Counsel submitted that the evidence showed that PTE effectively had a place of business in Aberdeen. That was where the claimant was recruited and engaged. He had no direct dealings with Singapore.[29]In relation to which contract needed to be considered the case of Voogsdgeerd was silent on whether the engagement was the initial one or subsequent engagements. In his submission it should be the initial contract which was the initial recruitment. It would be odd, he suggested, if someone could found jurisdiction and then lose it although the employer/employee relationship was uninterrupted. However, in his submission although the engagement on the most recent contract was less clear than that of the initial engagement in 2011 he suggested that there was still no real input from Singapore. Although SDHR were in any scenario not the ‘‘employer’’ it did not prevent Aberdeen from being the place of business. The test suggested at paragraph 64 of Voogsdgeerd was satisfied. There were also objective factors showing that SDHR were the principal actors in the engagements. Respondent’s Position[30]Mr Napier started by reminding the Tribunal that following on the withdrawal from the EU international jurisdiction under the ‘‘Brussels Regime’’ had been removed from UK law but mostly replicated. The approach was therefore governed by the ‘‘Recast Brussels’’ Regulation. However, courts still had to have regard to any European Court authorities laid down before 31 December 2020. The gateways to jurisdiction are set out in s15C and 15D of the Civil Jurisdiction and Judgments Act 1982 (“CJJA”) which are the only routes for cases involving contracts of employment. The focus of the case was on s15C which was capable of conferring international jurisdiction on UK courts ‘‘where the business which engaged the employee is or was situated (regardless of the domicile of the employer)’’ The wording was similar but not identical to the wording in the Rome Convention and authorities on the Convention were relevant in interpreting the Brussels Regulations. My understanding was that these submissions were uncontroversial.[31]In determining which business ‘‘engaged’’ the claimant the EAT had made reference to the ECJ decision in Voogsgeerd (2011) EUECJ C-384/10. The focus was on factors relating to the procedure for concluding the contract such as the place of business which published the recruitment notice and which carries out the recruitment interview. The EAT decision made it clear that the role of SDHR had to be examined between 2011 and 2021.The remit had to consider the argument that SDHR constituted a ‘‘branch’’ or ‘‘establishment’’ although the earlier decision had found that SDHR was not an agency.[32]Mr Napier then turned to consider what was a preliminary matter namely which of three contracts given to the claimant between 2011 and 2021 was the one under which he was ‘‘engaged’’(s15(2)C). The use of the word engaged presupposed engagement under the contract. The respondent took the view that it was the third contract namely the final one that commenced in June 2021 that applies. He submitted that although continuity of employment was important in UK law it had no application here (Asgill v Royal Dutch Shell UK and others). He further suggested that from the point of view of protecting the weaker party i.e the employee it made sense to focus on the final contract.[33]It was important, he continued, when considering the issue of the engagement to assess the recruitment process to determine the real location of the place of business. This was not where the employee was actually working. Accordingly, it was the place of engagement not performance that is critical. In the current case the involvement of SDHR in Aberdeen as a point of contact in the administration of the employment relationship with PTE was not relevant in deciding the place of business that engaged him.[34]He gave as an example that the respondent might have had a branch or agency in Dublin through which the claimant had been recruited but which by 2021 no longer existed. There are also several references to “the contract” in Voogsgeerd (paras 43, 45, 50 and 62) and these make most sense if construed as referring to the contract in force when the dispute arises, rather than a contract that had ended some 10 years previously.[35]In his submission EU law, in the shape of Brussels 1a, Art 21(1)(b)(ii), gives jurisdiction to the “courts for the place where the business which engaged the employee is or was situated.” That is the provision which CJJA s.15C(2)(c) seeks to replicate in UK law, and in interpreting the UK provision it is appropriate to look at the EU case law. In practice there is only one decision of the court that impact on the present issue, and that is Voogsgeerd. Counsel then examined the case of Voogsgeerd and it’s import.[36]There was, he submitted, no basis for any suggestion that when PTE concluded the contract (either in 2021 or 2011) it was acting on behalf of SDHR. The qualification allowed by the ECJ at para. 49 of its judgment in the case to “the undertaking which concluded the contract in actual fact acted in the name of and on behalf of another undertaking” does not apply. There was an English authority which confirmed (for the purposes of determining the applicable law of the contract under the Rome Convention, Article 6) that the meaning of “engaged” was to be decided by reference to events taking place at the outset of the employment relationship (Booth v Phillips [2004] EWHC 1437 (at para 26)).[37]The second issue related to the actual meaning of the word “engaged” and the phrase “place of business”. To take the concept of “engaged” first, the documents show clearly (as the claimant accepted in cross-examination) that the engagement (in the sense of conclusion of the contract by offer and acceptance) took place in Singapore in all three of the contracts which were entered into by the claimant. The original ET decision records that as a finding in fact (paras. 4.5.2, 4.7.2, 4.11.2) That was confirmed by the evidence of Amy Boston who adamant that SDHR had no power to conclude any such contract and never did so. The provision of services documents for PTE and AMS (JB pp. 177 and 181 are identical in substance and contain the clause that supports that position (clause (5.1)) which confirms no employees or crew will be employed by SDHR. The assistance provided by SDHR to the crewing companies in managing their crews was certainly evident but it did not amount to (and could not amount to) the “engagement” of the crew at any time in the relevant period 2011-2021. As for the phrase “place of business”, if SDHR is not a “business” of the respondent within the meaning of s15C(2)(c) then it matters not whether one is looking at the conclusion of the 2021 or 2011 contract. In either eventuality Aberdeen cannot be a location where the activities of SDHR in assisting in the hiring of staff can lead to a finding that the Aberdeen ET has jurisdiction to hear the claimant’s claims. In other words the burden is on the claimant (as he has to establish jurisdiction) to prove both that SDHR “engaged” him and also that SDHR was a “business” of the respondent.[38]The ECJ in Voogsgeerd expressed a view as to the meaning of ‘‘place of business’’. Unlike the Advocate General, the Court did not expressly state that this term should be equated with the concept of "branch, agency or other establishment' of Article 5(5) of the Brussels I Regulation. In the view of the Court this term was held to cover every stable structure, including a subsidiary, branch or an office, regardless of whether it possessed legal personality, provided that it had a degree of permanence (paras. 54, 55) and that it formed an integral part of the structure of the undertaking which engages the employee. (para 57). Professor Grusic reads the relevant passages in Voogsgeeerd as leading to this conclusion: The better interpretation he suggested was that the term ‘‘place of business’’ covers the employer’s domicile and any ‘‘branch, agency or other establishment’’ within the meaning of article 7(5) Brussels 1a” ("Private international law regulation of individual employment relationships within the European Union" (European Labour Law Journal 2024, Vol 15(1) 86-101, at p..94 Bundle of Authorities 230).[39]The evidence of Amy Boston on this point was again quite clear; SDHR is not part of the structure of PTE, the undertaking which employed the claimant in 2011 and again in 2021. It is a separate company with its own Directors and there is no overlap between these Directors and those of SDHR Ltd. (JB 175 lists as at May 2022 the Directors of PTE. and SB 4-6 lists the current Directors of Stena Drilling HR Ltd. The functions and powers Stena Drilling HR Ltd has are determined by the services agreement (and other agreements) it has with PTE and other companies within the Stena group (JB 177-180). SDHR is not an entity over which PTE exercises control and, to the extent that either entity had any contractual obligations to the other under the terms of the Services Agreement that was as a result of that entity choosing to enter into such contractual obligations. It cannot be said that the latter’s acts are attributable to the former. Neither of the two examples of what the AG in Voogsgeerd terms “actual control” (para. 80) – where a branch takes instructions from the dominant undertaking or where two undertakings have the same management apply here.[40]There was, he suggested, one qualification to keep in mind. The ECJ in Voogsgeerd went on to make this observation: By its fourth and last question, the referring court asks whether, for the purposes of applying the connecting criterion provided for in Article 6(2)(b) of the Rome Convention, the place of business of an undertaking other than that which is the employer can be regarded as acting in that capacity even though the authority of the employer has not been transferred to that other undertaking. In that context, the order for reference appears to suggest that this question arises because the applicant claims to have always received instructions from Naviglobe and that, for the period under consideration, the director of that undertaking was also the Director of Navimer, the undertaking which formally engaged the applicant in the main proceedings.[41]The upshot was that the court seised of the issue must take into consideration all the objective factors enabling it to establish the actual situation which differs from that which appears from the terms of the contract In making this assessment, the fact pleaded by Navimer, namely the absence of a transfer of authority to Naviglobe, constitutes one of the factors to be taken into consideration, but it is not, in itself, decisive in the determination whether the employee was, in reality, engaged by a different company than that which is referred to as the employer.[42]The respondent’s position was that the evidence shows that the new contract in 2021 was issued by PTE by email and returned by the claimant to them. Whilst SDHR employees assisted in facilitating the claimant's completion of the required change of details form at this time this was in accordance with its contractual obligations under the services agreements. It was performing its contractual duties. Whilst Angie Duda of Stena Drilling HR Ltd followed up on the claimant’s failure to return the appendix, and the claimant returned the appendix to her she then responded by acknowledging this and copying in PTE (SBp244).[43]The 2021 contract shows that the claimant’s duties and status had changed significantly since his employment had commenced in 2011. He had started as an ad hoc pool crew member derrickman but by 2021 he was in a far more senior position assigned permanently to one of the Stena vessels. There was in these circumstances no “engagement” by SDHR Ltd. The extent of Stena HR’s involvement (including the following up by Angie Duda) was simply not sufficient to amount to an engagement for the reasons already noted, and demonstrates nothing more than SDHR Ltd carrying out its obligations under the Services Agreement. As noted the ET decision, while finding that SDHR was not an agent of the respondent (para 70) made no finding as to whether it might qualify as a “branch” or “establishment”, in terms of CJJA s.15C(7).[44]As confirmed by Amy Boston’s evidence, it has no power to initiate or negotiate business with third parties and neither is it subject to the direction or control of PTE save in terms of the commercial agreements it has entered into with that company. Also contrary to any suggestion that SDHR is a branch or establishment of PTE was the fact that its powers to act are delimited by the contracts it has with the Singapore company and other companies within the Stena group. A company does not make such contracts with its own branch or establishment; it does not need to do so.[45]The issue of agency was already settled in the respondent’s favour by the decision of the original ET (para.70) the point that was made in the respondent’s objection to the line of questioning of Amy Boston that was being pursued by Mr Bunting. The respondent does not take issue with the evidence of the claimant, save to point out that he did have direct communication to and from the respondent (or AMS) on occasions, in addition to the occasions when he was offered and accepted a contract. Discussion and Decision[46]The legal framework that applied was not in dispute between parties. They both accepted that the ‘gateway’ to founding jurisdiction was through s15(C) of the CJJA and that the case of Voogsdgeerd was key to understanding how that section should be interpreted. The burden was on the claimant to demonstrate that the Employment Tribunal had international jurisdiction against PTE.[47]A thread that ran through the examination of the factual position which was that the Tribunal needed to consider the reality of the situation when making assessments and in determining the legal obligations between the parties. The claimant’s position was that there was no meaningful demonstrable input from PTE in recruitment suggesting that another legal entity was in fact ‘‘pulling the strings’’ Courts and Tribunals have since the Supreme Court case of Autoclenz v Belcher & Ors 2011 UKSC 41 SC been entitled to carry out such an exercise. Contract Issue[48]As a preliminary issue there was an argument between parties as to which contract, either the 2011 or 2021 contract that should be considered when looking at the issue of the claimant being engaged. Mr Bunting’s position was that the first contract, namely the 2011 contract showed the true nature of the relationship and in effect PTE had simply rubberstamped the recruitment exercise undertaken by the SDHR. He suggested that once jurisdiction had been established it would require a change in circumstances to remove the attachment of jurisdiction to that relationship.[49]Mr Napier argued that section 15C(2)(c) refers to “the place in the United Kingdom where the business which engaged the employee is or was situated” and submitted that the use of the word “engaged” presupposed the engagement under contract. In relation to the three contracts which the claimant had during his career with Stena he submitted that it was the last contract in the series (i.e. the one commenced on 30 June 2021) that was relevant as this was the contract in force when the claimant’s dismissal on capability grounds took place on 7 October 2021 and the last contract “caught” on the wording of section 15C(1) which relates to “proceedings whose subject matter is a matter relating to an individual contract of employment”. In the alternative if the Tribunal was not with him then his position was that the relevant contract would have to be the first contract which began in 2011.[50]There was some attraction in the suggestion that the first contract showed both the true nature of the relationship and that once established jurisdiction could only be lost on a change of circumstances. There does not appear to be any clear authority on this matter. The advantage to the claimant of focussing on the first contract is that there was no basis for any PTE involvement in the recruitment except agreeing to the candidates selected. If we were to focus on the first contract that would be to ignore the two further contracts issued to the claimant. It is also inconsistent with the fact that at termination he was engaged under the final contract entered into in 2021. As was pointed out this is not an issue where continuity of employment is important and I accept that when Section 15(2)(C) uses the word engaged it must presuppose the contract from which the claim arises and this is the 2021 contract.[51]Mr Napier also made reference to the High Court case of Booth v Phillips [2004] which although not binding in Scotland is persuasive in focussing on when the contract at issue was entered into. It is clear that the claimant was quite properly given different contracts as he moved up the ladder of promotion and the final contract being reflective of the role he latterly undertook.[52]Finally, I am of the view that there is some force in the suggestion that the weaker party to the contract, the employee, might be prejudiced if it is the original recruitment that provides the sole basis for jurisdiction as circumstances may have changed in the interim and the dispute that arises in relation to a contract is more conveniently litigated in the jurisdiction applying to the final recruitment. Agency/Branch Establishment[53]The question of whether SDHR were acting as an agent of PTE was revived by Mr Bunting in his submissions. He referred to section 15C(7) of the CJJA and the reference there to the employer having a branch agency or other establishment. Mr Napier’s position was that the matter wasn’t open to the claimant. The Tribunal’s initial finding that there was no agency had been unaffected he suggested by the Appeal. The position was that the EAT were clearly content of that earlier finding. Mr Bunting suggested that the matter was at large for the Tribunal to consider. He had not bent his mind to the matter as it was not part of the Appeal.[54]I observed that paragraph 44 of the EAT Judgment is to the effect that the Judgment of 12 July 2022 was set aside. It does not seem to expressly preserve parts of the Judgment nor are conclusions reached in relation to agency criticised. The matter was remitted for reconsideration of the issues of a) international jurisdiction; and if necessary b) territorial jurisdiction over the EQA claim. This appears widely expressed and in these circumstances although I am somewhat reluctant to open up the matter of agency I feel obliged to do so. Mr Napier had clearly considered the matter and set out his position fully on it and there will be no prejudice to the respondent. Accordingly, with some reluctance, I accept that the question should be considered once more.[55]I had set the decision in paragraph 70 of the Judgment. I see no reason to depart from the views expressed there which I will essentially repeat here. The agreements between PTE/AMS and SDHR do not appear to give SDHR any power to act independently of the two companies. There is no power to initiate or negotiate business at its own discretion. There was no evidence that Stena HR had it any autonomous power for example of a disciplinary nature and everything done was required to be agreed with a Director in Singapore. PTE’S Directors in Singapore oversaw and gave instructions to them. It was denied that they merely ‘signed off’ decisions made by SDHR. In terms of the agreement I noted that SDHR were to assist with recruitment, engagement and termination. Both agreements are said to be governed by the law of Singapore. In the circumstances here it is difficult to accept that the role of SDHR was an agency in some commercial sense. It was submitted that the proper interpretation of agency was still that envisaged in Article 20(2) of the Recast Brussels Regulation known as Brussels II and that the guidance given in the case of Olsen v Gearbulk Services Ltd (2015) IRLT 818 was still good law. I accepted those propositions. That case involved a company in a group of companies that provided HR and other services to another member in the group who was the employer. It was held that this did not constitute an agency relationship.[56]In Olsen Langstaff J (at para 53) referred to (and implicitly endorsed) EU case law which had referred to “branch, agency or other establishment” as connoting an entity “which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such a parent body but may transact business at the place of business constituting the extension.” (Somafer SA v Saar-Ferngas AG [1978] ECR218. of Authorities 149).[57]Mr Napier referred the Tribunal to the work of Professor Grusic who drawing on the case law of the CJEU noted that the concept of ancillary establishment implied “a centre of operations which has the appearance of permanence, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties, so that they do not have to deal directly with the parent body.” (“Jurisdiction” in The European Private International Law of Employment:, 2015).The articles from the learned author provided helpful analysis of a complex jurisdictional legal framework which had to try and cope with what he described as ‘‘the sheer diversity of transnational individual employee relationships’’.[58]The fact that the word agent was used by SDHR (JS245-248) in correspondence with the claimant does not alter my view as to the proper analysis of the relationship between SDHR and PTE. The word was not used in the somewhat ‘‘technical’’ sense required by the law in this area. SDHR had no independent freedom of manoeuvre or discretion in their dealings with potential employee of PTE. Their role was administrative in nature. In the present case it appears to me that it is going too far to suggest that the use by PTE of SDHR in a role akin to that of an employment agency can constitutes an agency for the purposes of the CJJA or that it has the requisite features needed to be considered a branch or establishment. It is true that there is some permanence to the arrangement but that arrangement gives them no freedom or discretion to negotiate or act to bind PTE. The contract for example is sent to Singapore and authorised there by a Director who had no role in SDHR. I concluded that SDHR could not be said to be either a branch or agency of the claimant’s employer. Place of Recruitment[59]Although both Counsel had referred to the case of Voogsgeert they took somewhat different interpretations from the decision. It seemed crucial as whether or not they were objective factors due to Aberdeen being the place of business which engaged the claimant. They accepted that Aberdeen had carried out the recruitment process. Mr Napier argued that it was clear that SDHR had not “engaged” the claimant in the sense of contracting with him. They could not do so. I accept that on the face of it that the service agreement limited their authority.[60]The difficulty the Tribunal had in contrasting the ostensible legal framework with the reality of what happened is that we heard very little evidence to allow this exercise to be carried in a meaningful way. It was interesting to note that no evidence was led from anyone in Singapore who was meant to be making these decisions. The system set out ‘on paper’ by the respondent might be a fiction and it is unclear to me how exactly the Group operates in that who actually decided firstly how many staff of a particular type are needed who are then vetted by SDHR. There was no evidence that PTE had ever refused hiring recommendations from SDHR. They were not it seems in a position, having no technical expertise, to gainsay assessments made by SDHR.[61]The evidence of Ms Boston was of assistance in that she could speak to the process as she saw it. She confirmed that Stena HR did not believe it had the authority to negotiate terms or to engage an employee. It was a separate company with its own Directors and there is no overlap between the Directors and those of Stena. SDHR is not an entity over which PTE can exercise control of the situation that occurred in Voogsgeerd (paragraph 80) where there was actual control namely where a branch takes instructions from a dominant undertaking or where the two undertakings have the same management. The input of Rig Managers who can veto a suggested appointment also indicated final control rested with PTE.[62]Mr Bunting submitted that it was incredible that if Rig Managers were involved that no documentation had been produced showing such input being given to the recruiters in Aberdeen. There were he suggested objective factors enabling the Tribunal to make a finding that SDHR in Aberdeen were the principal actors in the claimant’s first and subsequent engagements.[63]In response Mr Napier submitted, it was quite wrong for the Tribunal to infer there was anything sinister or untoward in the fact that no documentation had been submitted showing discussions between Aberdeen HR and Singapore in relation to, for example, the quality of candidates. Mr Napier pointed out that in Scotland it was up to a party to seek recovery of documents that they needed for their case and there was no general duty of disclosure.[64]Whilst this may be the process it is nevertheless perhaps surprising that if the process was not a “rubberstamp” as the claimant’s Counsel suggested and there had been meaningful discussions in relation to suitability of employees such as the claimant that some evidence of these processes had not been produced. What is somewhat unusual in the arrangements here as stated above is that there appears to be no technical expertise in PTE Singapore (leaving aside the issue of the Rig Manager’s input). My understanding is that they are recruited in the same way. The process was that SDHR would get the contact prepared and then it would be sent for execution to Singapore. There were some occasional hiccups in this process but they do not alter the underlying agreed process which was for SDHR to put in place the contract documentation for signature by the parties namely the successful candidate and PTE.[65]We spent some time in evidence considering the document prepared by the respondent at page 3 of the SB which is a flowchart of the recruitment process. Mr Bunting pointed out that the document had been created after the Employment Tribunal in July 2022 and suggested that little weight should be attached to it. I did find it a little surprising that such a flowchart had not been put together many years ago for the guidance of new staff requiring to carry out recruitment for PTE. Nevertheless, I am prepared to accept Ms Boston’s evidence that this reflects the process as far as she has experience of it (she was employed in 2013 and says that her understanding was that this process had been in place for some years earlier) and that it was the one applied in 2011).[66]It is noteworthy that Rig Managers do not get involved in the general or primary recruitment process but the form seems to indicate that they are likely to be involved in internal promotions. This was Ms Boston’s evidence and indeed the claimant indicated that his interview in 2018 for a promoted post had been arranged by his Rig Manager who no doubt supported that application. This process seems to make sense given the need for a close working relationship and trust to exist between a Rig Manager and his promoted staff as they will be working closely together on the same vessel for lengthy periods of time.[67]The effect of accepting this position is that it is evidence that at least in relation to promoted posts such as the claimant had when his employment was terminated that it can be said that there is usually a direct input into such recruitment from PTE staff. This in turn bolsters the respondent’s position that they are not ciphers in this recruitment process or that it is a sham.[68]In conclusion, my judgment is that the claimant has been unable to demonstrate that the system is a sham or does not reflect the underlying or true position. The matter turns on both the factual position but also on the legal framework that is in place to determine jurisdiction. As parties will have become aware that framework is complex and the judgments to be made are narrow and technical. However, employers are entitled to structure their businesses in a lawful manner. By having PTE and AMS act as crewing companies both based in Singapore the practical effect is that Singapore is the place of recruitment as it was there that the legal decision was taken to recruit the claimant on his final contract and that the Tribunal does not have International Jurisdiction over the respondent company in relation to either claim.