MR R NIEWIADOMSKI v WEST SIBERIAN RESOURCES LTD [2005] UKEAT 0008_05_1603

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0008_05_1603

Case No Appeal No. UKEAT/0008/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR R NIEWIADOMSKIAPPELLANT

WEST SIBERIAN RESOURCES LTDRESPONDENT

Before

Mr Justice Wilkie

Date 16 March 2005

[1]APPEARANCES For the Appellant MR NIEWIADOMSKI In Person For the Respondent NOT PRESENT NOR REPRESENTED SUMMARY Race Discrimination claim in respect of employment wholly outside the UK. THE HONOURABLE MR JUSTICE WILKIE This is the appeal by Mr Niewiadomski against a Decision by an Employment Tribunal Chairman who reviewed an earlier decision by the Employment Tribunal administration at Bury St Edmunds refusing to accept his claim against his erstwhile employer West Siberian Resources Ltd. That claim form was dated 24 October 2004.

[2]The Employment Tribunal Decision appealed against was dated 18 November 2004. Mr Niewiadomski made claims against his erstwhile employers for unfair dismissal, for racial discrimination and in respect of breach of contract. He was employed on 19 January 2004 under a contract signed by him on 19 January 2004 and by Vostok Oil Ltd on 12 January 2004. The document is entitled "Overseas Employment Agreement". The reason for the change in the employer's name appears to do with the employer being subject to corporate restructuring but nothing turns on the change of name.

[3]His employment ended on 19 September 2004. Therefore, in respect of his unfair dismissal claim he did not have the requisite period of continuous employment of one year which is necessary for the Tribunal to have jurisdiction and therefore there was no error of law in the Tribunal rejecting his claim in that respect.

[4]The contractual document provides in a number of its clauses for the pattern of Mr Niewiadomski's work. Clause 9 provides that the employee shall reside in the City of Tomsk, Russia while fulfilling his duties under this agreement. Clause 10 provides that the employee shall work on a rotational basis consisting of five weeks in Tomsk and two weeks home. Commencement of the home leave period is calculated from the day of departure from Russia and ends on the day of arrival back in Russia. Whilst in Russia the employee was to work a nominal six day week with Sunday normally being a day off.

[5]Air travel whilst rotating between Tomsk and the employee's home in the UK was to be in accordance with Section 7 which provided for his entitlement to reimbursement in respect of such travel costs. Mr Niewiadomski draws my attention to Clause 13 which says:

"13. In the event that a single controlling interest in Vostok Oil Ltd is acquired, resulting in a change of candidate in the position of Financial Director, a severance payment of 6 months average salary shall be payable to the Employee."

[6]Otherwise Clause 12 provides that the agreement may be terminated by the Company or the Employee, for any reason, upon two months written notice to the other party.

[7]Mr Niewiadomski's racial discrimination claim arises out of the circumstances of the termination of his employment on 19 September. He was replaced by a Russian national. The nominal reason for this was said to be some dissatisfaction with the pattern of employment of persons fulfilling his role and in particular in respect of the rotational arrangements. Mr Niewiadomski's case is that this was just a front for racial discrimination and that the effective controller of the company, who had acquired control during the course of his employment, a Mr Barski had made it very clear in various meetings that the real reason was his wish to employ Russian nationals because they were cheaper to employ and that, in practice, the arrangement in rotational working has continued albeit somewhat varied from the precise pattern which Mr Niewiadomski had.

[8]Regardless of the merits of his complaint of racial discrimination, and it has to be said that on the face of it, he seems to have plainly arguable case, the reason why the Tribunal initially rejected his complaint is because of want of jurisdiction. The Race Relations Act 1976 is the Act which concerns discrimination in the employment field. Section 4 of that Act, Subsection (1) provides that:

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another"

In connection with various arrangements Subsection (2) provides: (2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee – (c) by dismissing him, or subjecting him to any other detriment." Section 8 concerns the meaning of "employment at an establishment in Great Britain." Subsection (1) provides:

"(1) For the purposes of this Part of the Act, employment is to be regarded as being at an establishment in Great Britain [if the employee – (a) does his work wholly or partly in Great Britain; or (b) does his work wholly outside Great Britain and subsection (1A) applies]. Subsection 1A provides that: "[(1A) This subsection applies if, in a case involving discrimination on grounds of race or ethnic or national origins – (a) the employer has a place of business at an establishment in Great Britain ; (b) the work is for the purposes of the business carried on at that establishment; and (c) the employee is ordinarily resident in Great Britain – (ii) at any time during the course of the employment]"

[9]The Respondent in this case, West Siberian Resources Ltd, is a company which is incorporated in Bermuda but has its head offices in Stockholm in Sweden. It is clear from the terms of the contract that Mr Niewiadomski was employed to perform work at their undertaking in Tomsk in Russia. Therefore it is clear that, pursuant to Sections 4 and 8 of the Race Relations Act 1976, the Tribunals in England and Wales do not have jurisdiction to consider any complaint of racial discrimination in relation to his employment by the Respondent. It is right to say that in reviewing their initial decision to refuse to accept his application the Chairman did not address the question of racial discrimination but if he had done so, as the Tribunal had initially refused the application on the grounds of want of jurisdiction, in my judgment he would have been bound to have refused to review that initial decision as the original decision was plainly right.

[10]In fact, upon the review of the initial decision to refuse to entertain Mr Niewiadomski's application, the Tribunal Chairman did rule that his breach of contract claim could be accepted. Essentially that was because the contract of employment contained, in Clauses 18 and 19, an explicit choice of law clause nominating the law of England and Wales and a choice of jurisdiction clause nominating the English High Court. The Tribunal has jurisdiction to entertain any breach of contract claim which otherwise could have been entertained by the Courts in England and Wales, and pursuant to this express provision, it did have jurisdiction and rightly the case was the subject of a review. That of course is not the subject of Mr Niewiadomski's appeal.

[11]ne of the oddities of this case, however, is that it has become apparent that, during the currency of this appeal, the case was the subject of an ACAS sponsored settlement on terms that the Respondents pay Mr Niewiadomski £6,000.00 and provide him with a reference in an agreed form on its headed note paper. Mr Niewiadomski acknowledges that the payment has been made and that, albeit late in the day, he now has in his hands the agreed reference on the company's headed note paper. It therefore seems that, as far as the sole remaining claim is concerned, the breach of contract claim, there is nothing left for the Tribunal to adjudicate upon as there has been a settlement which is binding and that settlement has been fully discharged. That is not a matter with which I am concerned today but I make it clear to Mr Niewiadomski, who has attended and helped me greatly this morning, and to the Tribunal that it does seem to me that there is no longer any effective litigation being pursued by Mr Niewiadomski in respect of the termination of his employment by the Respondent.

[12]t therefore follows that I dismiss Mr Niewiadomski's appeal in respect of the review decision of the Employment Tribunal for the reasons which I have set out above.