Employment Judge J HendryMr M Romowicz (instructed by Solicitor) for claimantDeeside (Guernsey) Ltd Respondents for claimantRepresented by: for claimantMs Fiona Herrell (instructed by Solicitor) for claimantDate 16 April 2020
JUDGMENT
[1]The claimant’s application to amend the claim to one of unfair dismissal and arrears of standby pay is granted.[2]The application for strike out is refused. E.T. Z4 (WR)[1]An application for strike-out was made by the respondents’ solicitors in relation to this case. In order to understand the background, I will recount the history. As the respondents have done I will refer to the claim raised under case no. 4112734/18 as the “Existing Claim”. There is also an application to amend made by the claimant’s representatives which requires to be addressed. History[2]The claimant, who is Polish, raised a claim against Deeside (Guernsey) Ltd on 23 July 2018. The claimant is a seaman by trade and had latterly been assigned to work for the company Vroom Offshore Services Ltd.[3]The claimant narrates that on the 8 June he was told by a Crewing Superviser from Vroom Offshore Services to join a vessel the “Vos Inspirer”. He agreed to do this and made travel arrangements. He was then told that as his work activities were restricted for medical reasons the assignment to the vessel had to be terminated.[4]The claimant did not “tick” any of the boxes indicating that he was making a claim for unfair dismissal or discrimination but rather a claim for “failure to be paid the minimum wage”. The respondents submitted a Response Form (ET3). They agreed with the dates of employment which had been given by the claimant namely that he had started work on 26 July 2004 and that his employment was continuing. The Response which was detailed was summarised as follows: “Summary 1 The claimant’s claim was lacking in specification. The respondent will request further and better particulars and will seek leave to amend these Grounds of Resistance upon receipt of the same. Summary 2 It is denied that the respondents failed to pay the claimant the national minimum wage as alleged or at all and it is further denied that the respondent has made any unlawful deduction from the claimant’s wages contrary to section 13 of the Employment Rights Act 1996 as alleged or at all. Summary 3 It is denied that the claimant has been unfairly dismissed contrary to section 94 of the Employment Rights Act 1996 as alleged or at all. Summary 4 It is denied that the respondent had unlawfully discriminated against the claimant as alleged or at all. Summary 5 It is denied that the claimant suffered any detriment and/or been dismissed by the respondent because he has made a protected disclosure as alleged or at all. Summary 6 Save as set out below no admissions are made in relation to the ET1 the claim form submitted by the claimant.”[5]The ET3 went on to explain that the claimant was still and employee but was on unpaid leave with effect from 1 July 2018. He had a restriction in his work activities as confirmed by his most recent medical certificate which was that he could not work on fast, light motorboats for a period of 12 months from 16 February 2018 following an accident at work in May 2014. The respondents noted that the claimant had brought a personal injury claim in respect of the injury at work and sought damages for future losses. The claim had been concluded in May 2017.[6]The respondents had conceded that the Tribunal had jurisdiction and reserved the question of jurisdiction. The ET3 at paragraph 10.1 reiterated that the claimant had not been dismissed.[7]A preliminary hearing took place by telephone conference call on 1 November 2018. At that point Mr Zak was unrepresented. I noted at paragraph 2 of my subsequent Note: “At the outset I raised with Mr Zak the nature of his claims. I had read the ET1 but other than a claim for non-payment of minimum wage which was not at all detailed I could not discern his claim(s) was for. I decided therefore to discuss the background in order that I had a better understanding of the situation. Mr Zak is a seaman. He had a bad injury at work on 1 May 2014 and had a long recuperative process. He was off work for some time. His claim for personal injury was settled by the respondents or more than likely insurers. It appears he still has residual problems. He also had spinal difficulties which led to surgery unconnected with the accident. His position is that although still employed by the respondents he has been unfit to return to full duties. He has in the past few months been certified as been able to go back to restricted duties but he is debarred (and he accepted this) from working in/with power boats.’’[8]The respondent’s factual position was that he was asked to join a vessel (in other words asked to come back to work at sea for the first time since his accident) in June 2018. Preparations were made for him to board the vessel the ‘VOS Inspire’ but it was discovered that there was going to be a change of crew at sea and given the restrictions contained in the claimant’s medical certificate he could not take part in the transfer at sea using a small boat. His assignment to the ship ‘Vos Inspire’, was therefore cancelled. The claimant had been able to work on non-ship duties prior to being asked to board the ship.[9]The claimant had been annoyed and upset at the situation that had arisen. He was finding it very difficult to support his family. He was not in receipt of any sick pay.[10]The respondents suggested that the claimant had recently advised them that he had lost trust in them and didn’t want to return to work for them anyway. The respondents reiterated that they had not dismissed the claimant and were prepared to look at options for his redeployment but his restricted medical certificate had to be taken account. The claimant was given 28 days to consider his position and urged to take legal advice in relation to his claims.[11]The claimant did not respond following the Preliminary Hearing and as a consequence the Tribunal wrote to him on the 18 January advising him that the Tribunal was considering striking out his claim on the grounds that it was not being actively pursued. This seems to have prompted the claimant to instruct solicitors in Poland. They wrote to the respondents on 24 January 2019 resigning. The reason given by them was that his employers had failed to find him alternative work. A claim was also made for arrears of standby pay.[12]By letter dated 25 January the claimant’s solicitors also wrote to the Tribunal responding to the Tribunal’s order a strike-out warning. The Polish solicitors made representations to the Tribunal on the claimant’s behalf. They did not explain the delay but in those representations, they set out in more detail the claimant’s position in relation to a claim for unfair dismissal and the standby pay which they alleged was due to him in terms of an agreement with the respondents and making representations on his behalf in relation to the strike out warning. Representations were also made about a right to a redundancy payment and exemption for payment of fees which subsequently were not pursued.[13]The respondent’s solicitors e-mailed the Tribunal on 19 February. In summary, their position was that the existing claim should be struck out on the basis that the claimant no longer wanted to pursue it. The claimant should submit a new ET1 if he wanted to pursue claims for unfair dismissal and standby pay. In response the claimant’s solicitors e-mailed the Tribunal on 13 March. Their position was that there was new evidence they wanted to put forward supplementing the existing claim. The claimant wanted to pursue the existing claim on this new basis. In other words, an amendment was sought. They stated: “As new circumstances appeared on the subject case, the existing claim should not be struck out but should be supplemented instead.” They then set out the factual background that was being relied on.[14]The Tribunal arranged a further preliminary hearing to take place by telephone conference call. The respondents e-mailed the Tribunal on 8 April providing detailed comments on the claimant’s solicitor’s letter of 13 March. Their position remained unaltered and they insisted on strike-out. They submitted that the claimant’s solicitors had failed to address the Tribunal on the issues that required to take into account considering an application to amend. The claimant’s solicitor had not addressed what disadvantages the claimant would suffer and why he would have to raise a brand new claim with the Employment Tribunal in respect of the new claims he wished to pursue. The claimant’s solicitor had also failed to provide a revised draft ET1 showing the amendments and accordingly a correct application to amend has not been made.[15]Prior to the preliminary hearing parties agreed that the strike-out application could be dealt with by way of written responses. Parties summarised their respective positions. The respondents by letter dated 27 May 2019 and the claimants on 27 May 2019. Discussion and Decision[16]It is helpful to consider the issue of strike out at the outset although this is interconnected with the issue of amendment. The legal rules and principles that apply are as follows.[17]Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that: "37. Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds - (a) that it is scandalous or vexatious or has no reasonable prospect of success; …"[18]It has been recognised that striking out is a draconian power that must be exercised carefully. The Tribunal can strike out a claim in whole or in part. If exercised it would prevent a party from having that claim determined by a Tribunal. The power must be exercised in accordance with reason, relevance, principle and justice (Williams v Real Care Agency Ltd (2012) ICR D 27, EAT).[19]The grounds on which the strike out is sought by the respondents was initially that the claim was not being actively pursued and also that the ET1 did not identify any proper basis for a claim. However, it is apparent that Mr Zak was not clear whether his employment was continuing. He seemingly had heard nothing from the respondents for some time and he was not in receipt of sick pay or any other payment from the respondent. The respondents confirmed that he was still in employment.[20]The issue of strike out is bound up with the application to amend. Although the claimant has been tardy in his dealings with the Tribunal he has now instructed solicitors and they will almost certainly be more mindful of any time limits contained in Tribunal Orders in the future. The delays whilst regrettable have not been substantial nor have they resulted in any material prejudice to the respondents.[21]The criticisms made of the ET1 is well founded and if the ET1 stood in isolation by itself a strike out application on prospects would be well founded. However, the Tribunal has to have regard to the fact that it was prepared without legal assistance by a foreign national in a situation where his employment status and rights were not clear cut for him as an individual to assess. He eventually sought legal assistance and his lawyers have indicated that claims would be pursued on a different basis now the claimant had a fuller undertsnading of both the law and the factual position. It was open to them to raise new proceedings but it is apparent from the letter dated 25 January that they believed that fees were still part of the Tribunal process as they are commonly in other court processes. They were also aware that the Existing claim could be amended and took this course of action having identified a possible right to standby payments and to unfair constructive dismissal.[22]The danger in this course of action was that the claimant had an unrestricted right to raise new proceedings once concluding the early conciliation process to raise new claims but that the amendment of the Existing claim was a matter for the discretion of the Tribunal and might not be allowed. It is apparent that the risk in this approach is that the claimant’s ability to raise these new claims may now be time barred although a civil court might still have jurisdiction to hear a claim for payment or damages as different limitation periods apply.[23]The well-known case of Selkent Bus Company Ltd v. Moore [ICR 1996 836] sets guidance in relation to the exercise of their discretion. It is recognised that every case turns on its own facts. The Tribunal has wide powers of amendment even if a claim is out of time. It is worth quoting these principles as set out by Mummery J in that case: “5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.(b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions eg, in the case of unfair dismissal, S.67 of the 1978 Act.(c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”[24]The Tribunal has wide powers of amendment. I can see no prejudice to the respondents in that they are facing claims that could properly have been made, without restriction, in another way. The claimant, however, would be severely prejudiced. He would completely lose his right to make a claim for unfair dismissal. Any claim for standby payments would have to be made in the Sheriff Court with the attendant fees that apply there and the expenses regime that applies in the civil courts rather than in the Tribunal system which was designed to allow easy access to justice and a simple process for adjudicating on employment related claims.[25]While the situation that has developed is not entirely satisfactory I have come to the view that in these circumstances weighting the balance of prejudice as I have found it the allowance of the amendment is in the interests of justice.[26]The Respondents solicitors also criticised the manner in which the amendment was set out and suggested that a recast ET1 would have been the most appropriate way to proceed. I agree that this would have been preferable but some allowance has to be made for the claimant’s solicitors operating in what is to them a foreign system. The principal issue must be whether proper notice is given of the new issues and I accept that there is sufficient notice both of the claim for unfair dismissal and standby payments although greater specification will have to be given in the pleadings. This is a matter that can be discussed during a case management hearing which will be the next procedural step.
REASONS
[1]This case has something of a history, the claim form having been submitted on 23 July 2018. In any event, the claimant resigned from his employment with the respondent Company on 24 January 2019 and claimed that he had been constructively and unfairly dismissed. The respondent opposed an application by the claimant’s solicitor to amend the claim to introduce this complaint and applied for the existing claim to be struck out.[2]However, on 3 July 2019, Employment Judge Hendry issued the following Judgment:- “1 The claimant’s application to amend the claim to one of unfair dismissal and arrears of standby pay is granted. 2 The application for strikeout is refused.” History[3]In the reasons for his Judgment, Employment Judge Hendry set out the history of the claim. Case management preliminary hearing[4]Employment Judge Hendry conducted a preliminary hearing for case management purposes on 19 August 2019. The Note which he issued following that hearing is referred to for its terms. He directed the claimant’s solicitor to, “set out his client’s full position in relation to all the outstanding claims in one document often referred to as Better and Further Particulars.” He allowed the respondent’s solicitor an opportunity of responding. The claimant’s solicitor submitted the further and better particulars by email on 6 September 2019. The respondent’s solicitor responded by email on 20 September 2019 and attached “revised Grounds of Resistance”. The claimant’s solicitor commented on the respondent’s revised Grounds of Resistance by way of an attachment to his email of 11 October.[5]I conducted a preliminary hearing for case management purposes on 4 December 2019. The Note which I issued following that hearing is referred to for its terms. I identified three preliminary issues:-(i) Territorial (sic) jurisdiction in respect of the unfair dismissal complaint;(ii) Jurisdiction in respect of the breach of contract complaint; and(iii) The implications of the personal injury claim which was settled.[6]It was agreed that I would endeavour to determine these preliminary issues “on the papers”: on the basis of the parties written submissions. Respondent’s submissions on 10 January 2020[7]The respondent’s solicitor first set out the history of the case and then made the following submissions with regard to the issues raised in the revised Grounds of Resistance:- “The claimant’s claim relates in part to loss of earnings as a result of him being placed on unpaid leave by the respondent with effect from 1 July 2018. The respondent placed the claimant on unpaid leave owing to a restriction in his most recent medical certificate. The medical certificate states that the claimant cannot work on fast, or light motorboats, for a period of 12 months from 16 February 2018 following an accident he was involved in at work in May 2014. Since 1 July 2018, the respondent has not had any work the claimant could do given the restriction noted in his medical certificate which is why he has been on unpaid leave. The claimant has already brought a personal injury claim against the respondent in the Court of Session in respect of the injury he claimed he sustained during the accident in May 2014 and the losses including future losses he considered he had suffered, or would in the future suffer, as a result. The claim was concluded in May 2017. Consequently, and in accordance with the principle of res judicata, the claimant’s claim against the respondent should be dismissed. The respondent is a company having its registered office in Guernsey. The respondent reserves its position as to whether the tribunal has jurisdiction to determine any claims made against it. In accordance with section 199(7) of the Employment Rights Act 1996, Parts II, IV and X of Employment Rights Act 1996 only apply to employment on board a ship registered and the register maintained under section 8 of the Merchant Shipping Act 1995 if the three criteria set out at section 199(7)(a) – (c) of the Employment Rights Act 1996 are met. One of these criteria is that the person employed is ordinarily resident in Great Britain. As the claimant works on UK registered vessels when working for the respondent, section 199(7) of the Employment Rights Act 1996 is engaged. However, as the claimant is not ordinarily resident in Great Britain, he cannot satisfy the requirements of section 199(7). The tribunal does not, therefore, have jurisdiction to hear claims from the claimant under Part II, Part V and/or Part X of the Employment Rights Act 1996 and these claims should be dismissed. The claimant’s constructive unfair dismissal claim should, accordingly, be dismissed. In accordance with section 3(2) of the Employment Tribunals Act 1996, the employment tribunal can only hear a claim for damages for breach of the contract of employment if the claim is such that a court in England and Wales or Scotland would have jurisdiction to hear it. As the respondent is a company having its registered office in Guernsey, the respondent reserves its position as to whether the employment tribunal in Scotland has jurisdiction to determine a breach of contract claim against it.”[8]The respondent’s solicitor submitted that on the basis of this principle, the tribunal does not have jurisdiction to hear the claimant’s complaints of constructive unfair dismissal and/or breach of contract.[9]He provided details of the personal injury claim which the claimant raised against the respondent and which, as I understand it, was settled extrajudicially when the claimant accepted an offer of £50,000 with taxed expenses, “in full satisfaction of the Conclusions of the Summons”. It was submitted this was accepted by the respondent on 25 April 2017.[10]The respondent’s solicitor detailed the terms of a “Receipt, Release and Discharge”:- “I, Waldemar Piotr Zak, residing at Konikowo 79K, 76-012 Swieszyno, Poland, do hereby accept and acknowledge receipt of the payment of the sum of £50,000 (FIFTY THOUSAND POUNDS) STERLING in respect of damages, together with £12,657 (TWELVE THOUSAND, SIX HUNDRED AND FIFTY SEVEN POUNDS) STERLING paid to my solicitors in respect of my legal expenses, in full and final settlement, and in discharge and release of all claims competent to me, past, present and future, and howsoever arising, which arise out of or in any way connected with an incident during a fast rescue craft row from the VOS ENTERPRISE (the Vessel) in the North Sea on or around 3 May 2014 (“the Accident”) against:(1) All parties interested in the vessel including the Owners, Demise Chartered (if any), Charterers, Managers, Operators, P&I Underwriters and Master and Crew of the vessel, and their employees, agents or associates past and present and anyone acting on their respective behalves; and without prejudice do the foregoing generality(2) DECIDE CREWING SERVICES LIMITED, having a place of business at 4th Floor, Regent Centre, Regent Road, Aberdeen, AB11 5NS; NOMIS SHIPPING LTD, having a place of business at 4th Floor, Regent Centre, Regent Road, Aberdeen, AB11 5NS; DECIDE GURNSEY LTD, having a place of business at 4th Floor, West Wing, Trafalgar Court, Admiral Park’s, Peter Port, Guernsey, GY1 3RL, and VROON OFFSHORE SERVICES LIMITED, having a place of business at 4th Floor, Regent Centre, Regent Road, Aberdeen, AB11 5NS.”[11]As I understand it, the foregoing discharge was never signed by the claimant. However, it was submitted that the claimant had waived his right to pursue any claims against the respondent which were connected with that settlement.[12]A medical certificate which was obtained by the respondent in February 2018 was to the effect that the claimant was not eligible to work on fast, light motorboats for a period of 12 months. In correspondence dated 25 January 2019, the claimant’s representative stated as follows: “On 3rd May 2014 during testing, the Fast Rescue Craft Boat, the claimant had an accident. He fell down with force onto the deck with his bottom striking first. As a result, suffered the injury of the spinal brace. He underwent the spine surgery. That incident has admittedly qualified as a labour accident. The claimant received a medical certificate that he is fit to work with the limitation to not work on fast, light motorboats.”[13]The respondent’s solicitor summitted, therefore, that: “This restriction is connected with the claimant’s injury suffered on the vessel in May 2014. As such, the claimant is barred from pursuing any claims which arise out of or are in any way connected with this accident. The claimant’s claim of constructive unfair dismissal has been advanced on the basis that the respondent chose to place him on unpaid leave. As narrated above, the claimant was only placed on unpaid leave on the basis of the restriction contained within the medical certificate. As this restriction was connected with the incident on the vessel, the claim arises out of and is connected with that incident. Applying the principle of res judicata, the Tribunal does not have jurisdiction to hear his claim. The claimant’s claim of breach of contract has been advanced on the basis that he alleges that by placing him on unpaid leave, the respondent was in breach of his contract of his employment. As narrated above, the claimant was only placed on unpaid leave on the basis of the restriction contained within the medical certificate. As this restriction was connected to the incident on the vessel, the claim arises out of and is connected with that incident. Applying the principle of res judicata, the tribunal does not have jurisdiction to hear this claim. Accordingly, the claimant’s claims should be dismissed.” Jurisdiction - constructive unfair dismissal[14]In the alternative, the respondent’s solicitor submitted that the constructive unfair dismissal complaint should be struck out for want of jurisdiction.[15]He referred to sections 196-200 of the Employment Rights Act 1996 (“the 1996 Act”). He referred, in particular, to s.199 which deals with “Mariners”. Ss. 199(7) and 199(8) provide as follows: “(7) The provisions mentioned in subsection (8) apply to employment onboard a ship registered in the register maintained under section 8 of the Merchant Shipping Act 1995 if and only if –(a) the ship’s entry in the register specifies a port in Great Britain as the port to which the vessel is to be treated as belonging.(b) under his contract of employment, the person employed does not work wholly outside Great Britain, and(c) the person employed is ordinarily resident in Great Britain.” (8) The provisions are – (a) Sections 8 to 10 (b) Parts II, III and V (c) Part VI, apart from sections 58 to 60(d) Parts [6A] VII, VIII and VIII[A](e) Sections 92 and 93, and(f) (F) Part X (f) Part X”[16]The respondent’s solicitor submitted that:- “The claimant was employed on board several ships during his employment with the Respondent 14 of which were registered in the register maintained under section 8 of the Merchant Shipping Act 1995. Only 2 of which were registered elsewhere (the Bahamas and Liberia) and in respect of which the claimant only spent 77 days on board in total. Section 199(7) of the Act is therefore engaged. In accordance with section 199(7) and 199(8)(f), the Tribunal has jurisdiction to hear the claimant’s constructive unfair dismissal claim if and only if the conditions set out in section 199(7) of the Act, as set out above, apply. The claimant is not ordinarily resident in Great Britain. The claimant was not ordinarily resident in Great Britain at any time during his employment with the respondent. As such, the claimant cannot satisfy the provisions of section 199(7) of the Act which, by virtue of the word “and” must be read together as requiring the claimant to satisfy all three parts of that section. As the claimant is unable to do so, section 199(8) and consequently, Part X of the Act, does not apply to the claimant’s employment and he is unable to pursue a claim of constructive unfair dismissal against the respondent. We acknowledge that the claimant’s representative has already engaged with this preliminary issue and has referred to certain case law in support of their contention that the tribunal does have jurisdiction to hear this part of the claimant’s claim. In particular, the claimant’s representative has referred to the case of Lawson v Serco Limited [2006] UKHL3 in contending that the tribunal may take account of certain factors to establish the claimant has a substantial connection with Great Britain. The respondent submits that the principles borne out of this case are not applicable to the present circumstances. The case referred to by the claimant’s representative can be distinguished from the claimant’s case on the basis that it dealt with individuals who work largely outside of Great Britain but who had a close connection with, or who were ordinarily resident in, Great Britain. The case was not concerned with individuals who were employed upon vessels which are registered in the UK and to whose employment the provisions of section 199(7) of the Act (and, by extension, section 199(8) of the Act) apply. In the present case, the claimant’s employment does indeed fall under the provisions of section 199(7) of the Act. It is clear from the language of section 199 of the Act that subsection 8 applies to such employment “if and only if” the conditions in sub-paragraphs (a) and (c) of subsections 7 are met. As they are not all met, section 8 of the Act, and therefore Part X of the Act, does not apply to the claimant’s employment. It is submitted that by including the phrase “if and only if”, Parliament clearly intended for the provisions of Part X of the Act to apply to employment on board a ship registered in the register maintained under section 8 of the Merchant Shipping Act 1995 only in circumstances where the three requirements set out in section 199(7) of the Act are satisfied. As they are not all satisfied, the tribunal has no jurisdiction to hear the claimant’s constructive unfair dismissal claim. As the claimant’s employment falls within the legislative provisions found in sections 199(7) and 199(8) of the Act, there is no need to engage with the principles set out in the Lawson case.” Jurisdiction – breach of contract[17]The respondent’s solicitor also submitted that the claimant’s breach of contract claim should be struck out for want of jurisdiction. “Section 3(2) of the Employment Tribunals Act 1996 (the “ETA”) applies to:(a) a claim for damages for breach of contract of employment or other contract connected with employment;(b) a claim for a sum due under such a contract; and(c) a claim for the recovery of a sum in pursuance of any enactment relating to the terms of performance of such a contract If the claim is such that a court in England and Wales or Scotland would under the law for the time being enforce a jurisdiction to hear and determine an action in respect of the claim.[18]The respondent’s solicitor submitted that the tribunal does not have jurisdiction to hear the breach of contract complaint for the following reasons:(i) “the employer is a company registered in Guernsey;(ii) the contract governing the claimant’s employment was entered into in Guernsey; and(iii) the claimant is ordinarily resident in Poland and was ordinarily resident in Poland during his employment with the respondent. As such, the respondent has the right to be sued in the jurisdiction where they are registered (i.e. Guernsey)”. Claimant’s submissions[19]The claimant’s solicitor made written submissions by email on 8 January 2020. Jurisdiction – constructive unfair dismissal[20]The claimant’s solicitor accepted that the claimant was not ordinarily resident in Great Britain. He submitted, however, that the claimant has “a strong relationship with Great Britain:- “ It has to be stressed that the vessels on which the claimant was working under his contract of employment had the flag of the United Kingdom. What is important, his employment with the respondent was lasting nearly 15 years. Mr Waldemar Zak was paid in pounds sterling and he paid UK tax and National Insurance Contributions. He was retained under the UK pay and pension structure which applied to other UK based employees. The claimant’s employment contract was subject to UK law. The respondent has repeatedly emphasised the fact that the employment relationship is governed by British law.”[21]In support of his submissions, the claimant’s solicitor referred to Lawson v Serco Ltd [2006] UKHL3 in which the House of Lords suggested that employment tribunals may have jurisdiction to hear unfair dismissal cases in respect of employees who have a “strong connection” with Great Britain.[22]He also referred to Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC1. He submitted that case, “held that one generic question should be asked – is the connection with Great Britain ‘sufficiently strong’ to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to hear the claim.”[23]He also submitted that, “where rights derive from EU law, the EAT has held that a worker based outside Great Britain but within an EU Member State was able to pursue a claim in a UK Employment Tribunal on the basis that UK courts and tribunals have to give effect to “directly effective” EU rights, where UK law applied to the contract.”[24]So far as the present case was concerned, the claimant’s solicitor “stressed that even though the employer is a Company seated in Guernsey, the employing entity – Deeside Crewing Services Ltd – is located in Aberdeen, United Kingdom. The company provides services to the respondent, Deeside (Guernsey) Ltd, in support of crewing vessels for Vroon Offshore Services Ltd. Vroon Offshore Services Ltd is also located in Aberdeen. It cannot be denied that the indicated entities are strongly connected. The Employment Tribunal may take all the mentioned factors into account to establish that Mr Waldemar Zak had a substantial connection with Great Britain in comparison to any other jurisdiction and therefore was entitled to claim unfair dismissal before the Tribunal in Aberdeen.”[25]The claimant’s solicitor also submitted that, “grounds for unfair dismissal claims may also not be refused.” I took that to mean that the was alleging that the claim has merit. It was alleged that the termination of the claimant’s employment, “resulted from the harmful action of the Company to place him on unpaid leave without his will, which resulted in the loss of wages and loss of future wages. The decision to resign from work (which lasted nearly 15 years) requires a lot of time and sacrifices….. Without any doubt, the behaviour of the employer was a breach of contractual obligations of the employment agreement. Therefore, Mr Waldemar Zak has been constructively dismissed…. Bearing in mind all arguments cited by our side in the subject case, the claimant’s claim about being unfairly dismissed by the respondent is, in our honest opinion, justified. The test of the territorial extent of unfair dismissal protection shall be assessed separately for each case. Therefore, the case of Mr Waldemar Zak must be carefully considered by the Tribunal. In our opinion, the “strong connection” of Mr Waldemar Zak with Great Britain justifies the jurisdiction of the Employment Tribunal in Aberdeen to hear the claimant’s claim for unfair dismissal.” Jurisdiction - breach of contract[26]The claimant’s solicitor submitted that, “the link between the employer and Aberdeen, presented in respect of the unfair dismissal complaint, affects the legitimacy of the jurisdiction of the employment tribunal in Scotland in respect of the breach of contract complaint.”[27]The claimant’s solicitor referred to s.3(2) and s.3(4) of the Employment Tribunals Act 1996. He submitted:- “The respondent did breach the Claimant’s Seafarer Employment Agreement. Such breach was fundamental and was in effect the cause of the claimant’s resignation. The respondent’s contention that the claimant affirmed the contract following the breach in that he delayed too long in treating such breach as repudiating his contract by resigning and therefore accepted the breach was contradictory and unacceptable to us. During the period of unpaid leave, the claimant filed claims with the Tribunal and at the later stage, he asked us for legal assistance and granted a power of attorney. The employment terminated on 7 February 2019 subject to the notice period specified in the contract. The Grievance Procedure states that employee complaints should be made via the Crewing Department, seated in Aberdeen. In my honest opinion, reporting a breach of an employer by way of complaint would not be sufficient in this case. It has to be pointed out that the claimant was similarly treated by the employer 3 times. As a result of several decisions which placed the claimant on unpaid leave, the employer has violated the terms of the contract more than once. Therefore, the jurisdiction of the Tribunal in Aberdeen in respect of the breach of contract complaint is justified.” Implications of the personal injury claim which was settled[28]The claimant’s solicitor made the following submissions:- “According to section 3(3) of the Employment Tribunals Act 1996, this part of the act does not apply to a claim for damages, or for a sum due, in respect of personal injury. It has to be stressed that the claimant’s claims do not apply to the personal injury claim which was settled in 2017. The reference of the respondent to this matter in the subject case is in our opinion unfounded. The claimant has brought a personal injury claim against the respondent in the Court of Session in respect of the injury sustained during the accident in May 2014. It is worth mentioning that according to the content of the summons, the claimant’s loss, injury and the damage was caused by the defender’s breach of duties at common law and under regulations 5, 7 and 12 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997. In May 2017, the Lord Ordinary of the Court of Session decerned against the respondent and Vroon Offshore Services Ltd for payment to the claimant the compensation and the expenses of the process. It should be noted that only after the payment of the agreed sum of compensation, the claimant received a drab document “Receipt, Release, and Discharge”, which, however, was not signed by either party. The personal injury claim which was settled in May 2017, should not apply to the subject case. The subject of pending proceedings is the claim of unfair dismissal and arrears of standby pay from July 1st 2018 until the end of the contract – referral of the claimant for unpaid leave constituted the breach of contract. Given the previous proceedings related to the claimant’s accident, the respondent’s breach of contract is particularly acute. The respondent had full knowledge of the claimant’s health restrictions and yet made the described infringements. Bearing in mind the above, I hereby kindly ask to consider the claimant’s case where the interests of justice must do so, according to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. I hereby maintain the application submitted in the claimant’s further and better particulars and schedule of loss.” Respondent’s response[29]The respondent’s solicitor responded to the claimant’s submissions by way of email on 24 January 2020 with attachments. Jurisdiction - unfair dismissal[30]The respondent’s solicitor noted that the claimant accepts that the respondent is not ordinarily resident in Great Britain and that the vessels on which the claimant was working had the flag of the United Kingdom.[31]It was accepted that the claimant was paid in pounds sterling and that he had paid UK income tax and national insurance contributions; he was also a member of the respondent’s “Scottish Widows Pension Scheme”, but it was submitted that contributions for members of the scheme, whether UK residents or not, were calculated in the same way.[32]The respondent’s solicitor did not accept that the claimant’s employment contract was governed by UK law. He explained that, “the contract does not contain a jurisdiction clause but states that the contract was entered into in Guernsey.” The respondent was unclear as to the claimant’s position that, “the respondent has repeatedly emphasised the fact that the employment relationship is governed by British law.”[33]The respondent’s solicitor submitted that Lawson was not applicable, “in light of the strict interpretation of sections 199(7) and 199(8) of the Employment Rights Act 1996.”[34]He also submitted that Ravat, “could be distinguished.”[35]In any event, he submitted that, “the question of jurisdiction surrounding the claimant’s employment cannot be answered by the principles of either of the cases referred to by the claimant and must be decided by reference to the clear intention of Parliament in the drafting of sections 199 (7) and 199 (8) of the Act. Furthermore, in the case of Ravat, it was clearly acknowledged that the task of the court “is to give effect to what Parliament may reasonably have been taken to have intended…”. The statutory language in section 199 of the Employment Rights Act 1996 is quite plain. An employee can only pursue a claim of unfair dismissal “if and only if” all three provisions of section 199 (7) are met. In the present case, they are not. As such, there is no requirement to engage in an assessment of what parliament intended in this scenario. In light of the above, any principles from either the Lawson case or the Ravat case do not apply in the present scenario. Even if they were to apply, the respondent submits that the claimant’s employment does not have a sufficiently strong connection to Great Britain as he was not employed by a British company and he is not ordinarily resident in Great Britain.”[36]The respondent’s solicitor then went on to address the remaining comments made in the claimant’s submissions regarding the Tribunal’s jurisdiction in respect of the constructive unfair dismissal complaint. He said this: “The claimant has stated that, ‘where rights derive from EU law, the EAT has held that a worker based outside Great Britain but within a EU Member State was able to pursue a claim in a UK Employment Tribunal on the basis that UK courts and tribunals have to give effect to directly effective EU rights, where UK law apply to the contract.’ Whilst no case name or reference has been provided, the respondent observes that unfair dismissal (and constructive unfair dismissal) is not a right derived from EU law, let alone any directly effective EU rights. It is a right of statutory creation within the UK. As such, the claimant’s commentary here does not mean that he can pursue a constructive unfair dismissal claim. Particularly in circumstances where the UK Parliament has clearly sought to exclude the application of section X of the Employment Rights Act 1996 in certain circumstances such as the present circumstances. In addition, we repeat that that the claimant’s contract of employment did not stipulate that it was governed by UK law.”[37]The respondent’s solicitor also submitted that the claimant’s employer was the respondent, “Deeside Guernsey Limited” in terms of the Seafarer Agreement entered into with the claimant in 2016. He was not employed by “Deeside Crewing Services Limited”. He was not employed by a “UK entity”.[38]The respondent’s solicitor then commented on the observation by the claimant’s solicitor that, “the choice of Tribunal in Aberdeen was made by the Tribunal in Glasgow…. the Tribunal in Glasgow was, whereas designated by the Tribunal in Guernsey.”[39]The respondent’s solicitor was not aware of any claim being submitted to any tribunal in Guernsey. In any event, he submitted, that any such administrative decision is irrelevant to the question of jurisdiction. “The tribunal has to decide whether it has jurisdiction to hear the claim and this can happen at any time after the claim has been submitted and acknowledged.”[40]So far as the merits of the constructive unfair dismissal complaint were concerned, the claimant’s solicitor submitted that as these were evidential matters they were not relevant to the question of jurisdiction. The respondent’s solicitor maintained his position that the Tribunal does not have jurisdiction to hear the claimant’s constructive unfair dismissal complaint. Jurisdiction - breach of contract[41]The respondent’s solicitor submitted that the issue of jurisdiction in respect of the claimant’s constructive unfair dismissal claim had no bearing on the issue of whether the Tribunal has jurisdiction to hear the breach of contract complaint. For the reasons set out in his submissions of 10 January 2020, the respondent’s solicitor submitted that the tribunal does not have jurisdiction to hear this complaint and that it should be dismissed.[42]So far as the remaining comments under this section by the claimant’s solicitor were concerned, the respondent’s solicitor submitted that these were evidential matters, and were not relevant to the preliminary issue of jurisdiction. Implications of the personal injury claim which was settled[43]The respondent’s solicitor referred again to the claimant’s pleadings in the Court of Session action which was settled extra-judicially. He attached to his email a copy of the Record in the Court of Session action.[44]He went on in his submissions to say this:- “In his valuation of claim lodged in the action, the claimant claimed for and quantified past and future loss of earnings and disadvantage on the labour market. Payment of the agreed compensation was made to the claimant pursuant to the court’s interlocutor of 2 May 2017. The claimant accepted these sums in full settlement of the conclusions of the summons, including any future losses he may suffer as a result of that injury. The final interlocutor in the action, dated 2 May 2017, pronounced decree “in full satisfaction of the conclusions of the summons”. In light of this, and the fact that the claimant’s breach of contract claim seeks to recover alleged losses that arise from the accident and were included in his claim in the action concluded by decree of the Court in 2017, the respondent submits that this aspect of the claimant’s claim cannot be pursued in accordance with the principle of res judicata. In light of the above, it is submitted that it is irrelevant whether or not the claimant signed the Receipt, Release and Discharge. Conclusion The respondent submits that the claimant’s claims should be dismissed as the Tribunal does not have jurisdiction to hear them.” Claimant’s response
Conclusion
[45]The claimant’s solicitor responded by email on 23 January 2020. By and large, he reiterated his previous submissions.[46]He submitted that this, “did not reflect the preliminary issue indicated originally in the correspondence from the tribunal received on December 4th, 2019. In the claimant’s assessment, this principle should not be invoked in context of the personal injury claim concluded in May 2017.”[47]He further submitted that, “from 1st July 2019, the claimant was placed on unpaid leave, without his will, against the provisions of the employment agreement. The harmful decision of the Company resulted in the loss of wages and loss of future wages.”[48]He submitted that the respondent was in breach of the “Seafarer Employment Agreement” as they placed the claimant on unpaid leave.[49]He submitted that: - “The principle of res judicata should not apply, because the issue of constructive unfair dismissal in breach of contractual terms has not already been determined – they could not have been dealt with in earlier proceedings.” He submitted that “the current claims are not linked to a claim for personal injury as a result of an accident at work”. He reiterated his submission that the claimant, “has an equally strong connection with Great Britain.” Claimant’s further submissions[50]On 6 February 2020, the claimant’s solicitor sent an email to the Tribunal, copied to the claimant’s solicitor, with a number of documents attached. Discussion and decision Jurisdiction – constructive unfair dismissal[51]Employment Tribunals, being “creatures of statute”, have a narrowly defined jurisdiction which covers most of the employment rights established by modern employment legislation.[52]The rules governing the right of Mariners to bring unfair dismissal claims are contained in s.199 of the Employment Rights Act 1996 (“the 1996 Act”). The issue, therefore, is one of jurisdiction, in terms thereof.[53]In terms of ss.199 (7) and (8), Mariners, such as the claimant in the present case, who are employed on board a ship registered in the UK can only bring a claim if:• the ship is registered as belonging to a port in Great Britain• under his or her contract of employment, the person employed does not work wholly outside Great Britain, and• he or she is ordinarily resident in Great Britain (Great Britain means England, Scotland and Wales; the UK means Great Britain and Northern Ireland. Neither expression includes the Channel Islands or the Isle of Man).[54]The claimant is not “ordinarily resident in Great Britain”. He never has been. He is ordinarily resident in Poland.[55]As the respondent’s solicitor drew to my attention, the terms of s.199 (7) are clear: an Employment Tribunal has jurisdiction to hear an unfair dismissal complaint “if and only if” all three conditions detailed above are satisfied.[56]The claimant has not satisfied all three conditions.[57]The employment tribunal does not have jurisdiction, therefore, to consider the claimant’s unfair dismissal complaint.[58]The submissions by the claimant’s solicitor, with reference to Lawson and Ravat, that the claimant had a “sufficiently strong connection” with Great Britain, add nothing to the point. They are irrelevant given the clear terms of ss. 199 (7) and (8) of the 1996 Act.[59]Nor is the fact that the complaint may have merit, as the claimant’s solicitor submitted, relevant. Jurisdiction is a fundamental matter and a tribunal must first be satisfied that it has jurisdiction before it can proceed to consider the merits of a case.[60]Finally, so far as the claimant’s submissions are concerned, the fact that apparently the claimant submitted a claim form to “the Employment and Discrimination Tribunal” in Guernsey and that Tribunal “designated the Tribunal in Glasgow to consider the claim” is nothing to the point.[61]That was an administrative decision. It has no bearing on the fundamental right of the jurisdiction of a tribunal to hear a claim.[62]The complaint of constructive unfair dismissal is dismissed, therefore, for want of jurisdiction. Jurisdiction – breach of contract[63]I do not accept the contention by the claimant’s solicitor that: “the link between the employer and Aberdeen, presented in respect to the unfair dismissal complaint”, affects the legitimacy of the jurisdiction of the employment tribunal in Scotland in respect of the breach of contract complaint. The statutory basis for each complaint is quite different. The two complaints are not connected so far as the issue of the tribunal’s jurisdiction is concerned. That means that although I decided that the tribunal does not have jurisdiction to consider the complaint of unfair dismissal, it does not follow that the tribunal does not have jurisdiction to consider the breach of contract complaint.[64]The contractual jurisdiction of employment tribunals is governed by s.3 of the Employment Tribunals Act 1996 (“ETA”) together with the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 (“the Order”).[65]Under s.3 (2) of the ETA and Article 3 of the Order, for a tribunal to be able to hear a contractual claim brought by an employee, that claim must arise or be outstanding on the termination of the employee’s employment and must seek one of the following:(i) damages for breach of the contract of employment or other contract connected with the employment;(ii) a claim for a sum due under such a contract; or(iii) the claim for a recovery or a sum in pursuance of any enactment relating to the terms of or performance of such a contract.[66]However, it is necessary that any claim could fall within the jurisdiction of the Civil Courts in Scotland. There is no such jurisdiction in the present case for the reasons detailed by the respondent’s solicitor in his initial submissions:- “(1) the employer is a Company registered in Guernsey; (2) the contract governing the claimant’s employment was entered into in Guernsey; and (3) the claimant is ordinarily resident in Poland and was ordinarily resident in Poland during his employment with the respondent.”[67]The merits or otherwise of the breach of contract complaint are once again irrelevant for the same reason as they were irrelevant in relation to the unfair dismissal complaint: jurisdiction is a fundamental right and a tribunal must first be satisfied that it has jurisdiction before it can proceed to consider the merits of a claim.[68]I was satisfied, therefore, that the respondent’s submissions in this regard are well founded. Accordingly, the breach of contract claim is dismissed for want of jurisdiction. 69.[70]Although I have decided to dismiss the claim in its entirety, for the sake of completeness, I record my views on this issue.[71]The issue is also a fundamental one as it relates to the tribunal’s jurisdiction. It must, therefore, be determined as a preliminary matter.[72]The principle prevents a party reopening an issue that has been decided in earlier proceedings. However, res judicata only applies to issues that are the same as those already determined.[73]The claimant raised a personal injuries damages claim in the Court of Session in respect of an accident at work. The issues in the employment tribunal case are not the same as the issues which were determined in the civil action in the Court of Session. Res judicata does not apply, therefore, to the employment tribunal claim.[74]However, the sum which the claimant received by way of damages reflected the claimant’s financial loss. Had I decided, therefore, that the tribunal had jurisdiction to consider his claim and if he had succeeded, the tribunal would take account of the damages he had received in the civil action when assessing what would be a “just and equitable” compensatory award in respect of the unfair dismissal claim; and so far as the breach of contract claim is concerned, whether the claimant had sustained any financial loss as a consequence of the breach, and if so, the appropriate award of damages.