D CURRAN & SONS LTD v MR J BESWINSKI [2010] UKEAT 0476_09_1401

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0476_09_1401Case No Appeal No. UKEAT/0476/09/JOJ UKEAT/0477/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
D CURRAN & SONS LTDAPPELLANTMR J BESWINSKIRESPONDENT
Before
Mr Justice LangstaffDate 14 January 2010
[1]APPEARANCES For the Appellant MR PATRICK MOORE (Representative) For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY JURISDICTIONAL POINTS: WORKER, EMPLOYEE OR NEITHER PRACTICE AND PROCEDURE: PRELIMINARY ISSUES APPELLATE JURISDICTION/REASONS/BURNS-BARKE The Tribunal accepted jurisdiction in a case in which the employee who lived and worked mainly in England drove lorries for a company based in Northern Ireland. There was no evidence the company had an office in England. The Tribunal failed to give sufficient reasons why it concluded it had jurisdiction, and may have asked where the employee worked or was based rather than the appropriate, and different, question which was whether the employer conducted business in England and Wales. Since the decision was not plainly and obviously right, it was to be remitted. THE HONOURABLE MR JUSTICE LANGSTAFF This appeal arises from a reserved judgment on a pre-hearing review, by Employment Judge Hewitt, at Liverpool on 14 January 2009, reasons for which were delivered on 3 February.[2]He considered the question of the jurisdiction of the Tribunal to hear complaints made by an employee that his employer had failed to pay holiday pay, failed to issue a statement of terms and conditions of employment and for breach of contract.[3]The jurisdictional issue related, not to the place of work or the residence or base of the employee, but to the territorial location of the employer ; a distinction which needs to be borne carefully in mind.[4]The jurisdiction of a Tribunal in England is defined by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 , Rule 19(1) of which provides, so far as is relevant:
"An employment tribunal in England … shall only have jurisdiction to deal with proceedings where – (a) the respondent … resides or carries on business in England and Wales;"
[5]The conclusion of the Employment Judge was based upon the facts he found. The proceedings before him were somewhat one-sided, in that the employee attended and was represented by a lawyer. The Respondent did not attend. There was an explanation for that, which arose out of the fact that the Respondent was a transport undertaking based in Bangor, County Down in Northern Ireland. There were, thus, considerations of convenience and expense which needed to be balanced, so I am told, against the possible disadvantages that might have come from a Tribunal judgment made in the absence of any evidence from, or representation by, the Respondent.[6]The reverse has been the position on this appeal. As was the case before the Tribunal there have been submissions in writing from both parties, but here the Respondent (the employee) has not been represented. I am asked to have regard to his written representations which, of course, I do.[7]The Tribunal judgment set out, at paragraph 6, a number of facts. Although the Respondent, for whom Mr Moore who is legally qualified, but not a lawyer in professional practice, appears, would wish to argue with the accuracy of some of the findings it seems to me that he cannot show that there was an error of law in the Tribunal Judge finding as he did. A Judge, necessarily, has to consider, and is obliged to make his findings upon, the evidence which is put before him. In the absence of the Respondent at the Tribunal, for the reasons which I have explained, the Respondent cannot complain about the findings of fact which fell within the evidence given to the Employment Judge. I consider myself bound by them and no proper challenge arises.[8]Those facts show that the Claimant was a delivery driver for a transport company based in Bangor, County Down. Although, for the first three months of his employment, he worked fairly regularly in Northern Ireland, after that, from the end of 2005 until the termination of his employment in 2008, he worked almost exclusively in England, with occasional work in Wales and Northern Ireland. He had a lorry, which was based in a shipping yard by Birkenhead Docks. His work involved picking up a trailer from the port in Birkenhead and delivering goods contained in it to various locations. He would generally then collect goods for a return journey to Birkenhead and deposit those at the port for onward transmission, by ferry, to Northern Ireland. Essentially, those were the facts which the Tribunal judge based his conclusion on although, additionally, he had regard to the fact that the Claimant lived in Wallasey, during his employment, at two addresses which he gave, and that he was paid in sterling.[9]Having set out the law (Rule 19), as I have done earlier in this judgment, and the facts, essentially as I have recited, the Employment

Judge said this in paragraph 7.2:

"7.2 The Tribunal has had regard in particular to the following cases – Bleuse –v- MBT Transport Ltd & Another [2007] UK EAT 0339 Lawson –v- Serco Ltd [2006] ICR 250 Todd v British Midlands Airways Ltd [1978] IRLR 370. 8. Applying the Findings of Fact to the Applicable Law to Determine the Issues 8.1 The Tribunal was impressed by the evidence of the claimant who appeared straightforward and honest. The Tribunal accepts the claimant's evidence as being factually correct. Having regard to that evidence and the wording of Rule 19(1)(a) of the 2004 Regulations and the principles enunciated in the authorities referred to above, the Tribunal is satisfied that it does have jurisdiction to consider the claims herein, which will now proceed to a full hearing."
[10]The submissions made on this appeal, by the Appellant, cover a wide range. Many of the points made to me argue that, ideally, the Claimant should have brought his claim in Northern Ireland. Those points are beside the question. The sole issue, as it seems to me, is first whether the Employment Judge was entitled to come to the conclusion that he did, upon the evidence which he accepted and the findings of fact which he made and, secondly, whether he sufficiently explained the reasons for coming to the conclusion he did.[11]It is submitted, in my view with considerable force, that the cases to which the Employment Judge had regard were all cases which considered the jurisdiction of the Tribunal to consider a claim from an employee who was not obviously living in and residing in England. That is the context for each of those decisions. They were not concerned with the analytically different question as to where it was that the employer did business. Accordingly, for the Tribunal to say, without more, that it had had regard, in particular, to those cases, is strongly to suggest that the Judge had regard to where it was that the employee worked, or where it was that the employee was based and, in the words of Lawson v Serco , answered and addressed the ordinary question which was "whether he is working in Great Britain at the time when he is dismissed". None of that helps, directly, to answer the question where the employer did business.[12]It was an almost inevitable consequence of the situation I have described, where the Claimant, alone, was present and represented at the Tribunal, that the findings which were recited at paragraph 6 reflected what he said about his own position. There is absolutely nothing in the decision which shows what, if any, weight the Tribunal Judge placed upon any particular feature of that evidence. It may be, given his recitation of the three cases at paragraph 7.2 that he was heavily influenced by where it was that the Claimant lived, for instance. He may have been influenced by where it was that the Claimant worked. The first of those would not, obviously, be relevant to where the Respondent carried on business. The second, plainly, could be, for the place where an employee of a business works may well be closely related to a place where the employer carries on business. But this is not necessarily so.[13]It is a principle of law that an Employment Judge must set out, sufficiently, his reasoning, so that the party who loses knows why it is that they have lost and, for that matter, the party who succeeds, why they have succeeded. There are three main reasons for this. First it is an essential principle of justice that the parties know why it is a Court has come to a conclusion which is adverse to them or, for that matter, in their favour. Secondly, it reminds the decision maker of those matters which he must have in mind as essential when making his judgment, acting, as it were, as a checklist of those matters which it is relevant to consider. Thirdly, it permits a Court of review, such as this, to ascertain whether a decision maker has indeed identified and properly addressed the correct questions and provided the correct answer, so that if a mistake has been made it may be put right.[14]Thus, it is well accepted that it is an error of law not sufficiently to express reasons to fulfil those objectives. Here, as I have indicated, the citation of cases which are appropriate to a closely analogous, but not identical, issue indicates an error. There is nothing in the reasoning which allows a Court to feel satisfied that that error has not been committed. It is simply not possible to know what precise factor weighed with this judge, in determining the case as he did. Accordingly, I have no hesitation in concluding that the Employment Judge's approach was flawed.[15]The more difficult question now arises; that is whether the judge was, despite his error, in any event plainly and obviously right. This depends upon whether it is a necessary conclusion, from the facts which he found, that the Appellant company carried on business in England and Wales. The evidence is very strongly indicative that that is the case. The company was a transport company. That involves taking goods from one destination to another. The findings of fact include that those goods were not only taken from Northern Ireland to England and Wales, but were taken from England and Wales back to Northern Ireland. The business of a transport undertaking is transporting goods, presumably for customers. It seems highly likely that those customers would have been in England as well as in Northern Ireland. I have, however, just been persuaded, by Mr Moore, that it might be possible, upon these findings of fact, to argue that there was insufficient before the judge necessarily to compel the conclusion which he reached. An analogy might be with a company delivering goods from a warehouse and sometimes picking up returns from a customer, in which the warehouse was on one side of a border and the customer on the other. Where, it might be asked, was the business being done? What, in the context of the Employment Rights Act and the Employment Tribunal's jurisdictions, more generally, should be the content of the expression "carries on business"? It may be that those words can be understood simply by reference to their common, ordinary meaning. That is certainly the view to which I would incline. But, there is at least a potential argument that it has a particular meaning, in the context of employment legislation, such that, as Mr Moore submits to me, it is relevant to consider where the main administrative centre of a company is and where it is that the contracts are made, in respect of which the transport undertaking does its business and, as he puts it, the question of "carrying on business" cannot simply be answered by where there may be customers; is it, for instance, to be held that, in these days of the internet, that anyone who buys goods on the internet, from a company somewhere in the world, becomes a customer of that company, such that that company can be said, for the purposes of the employment legislation, to be carrying on business in this jurisdiction where the internet customer is presently sitting?[16]These questions may be much more theoretical than real, but I am ultimately persuaded that there is just enough for me to conclude that here it is not so completely plain and obvious that the answer should be in favour of the employee, that I should reject the appeal on that basis.[17]It follows that, with some regret, I feel obliged to allow the appeal. A consequence of this will be that the case must be remitted to the Tribunal. When it is remitted to the Tribunal, it seems to me that, there is no bar to it returning to the same Employment Judge, although I do not direct that that should necessarily be the case.[18]The findings of fact made by Judge Hewitt, it seems to me, are not open to challenge, however much the Respondent employer would wish to challenge them. The scope of the remission will be to consider whatever other and further evidence the employee, or employer, wish to give upon the question as to where it is that the Respondent employer carries on business. Any submissions and authorities as to what, in this context, "carrying on business" means will have to be placed before the Tribunal. Accordingly, I allow this appeal on those grounds, with that conclusion.[19]Now, Mr Moore, you have won your appeal. You will see that what I have provided for is a remission, but not affecting the facts which have already been found. I appreciate that you want to argue about some of those, but you cannot do that. You can add to them and inform the Tribunal on any other matter which may make the judge change his mind. It is entirely a matter for you. You will form your own judgment as to how useful it will be for the company, but the question which you will need to focus on is what constitutes carrying on business and you may find (it is a matter for the Employment Judge to say if that is what he finds and why he finds it) that he takes a view that it is not just where the administrative centre of a business is. But that is a matter for him. I am going to express no further comment on it.