Comparison of CPR and ET Rules on Extraterritorial Jurisdiction & Service in Employment Tr, Lecture notes of Business

Download Comparison of CPR and ET Rules on Extraterritorial Jurisdiction & Service in Employment Tr and more Lecture notes Business in PDF only on Docsity! Case number: 2201437/2020 1 EMPLOYMENT TRIBUNALS Claimant Respondents Mr F Zishaan AND 1. NCR Corporation 2. NCR Limited 3. James Bedore 4. Evan Glover Heard at: London Central On: 28 July 2020 Before: Employment Judge Brown Representation For the Claimant: Ms C McCann, Counsel For the Respondent: Ms M-Y Shiu ,Counsel JUDGMENT AT A PRELIMINARY HEARING The judgment of the Tribunal is that: 1. Permission to serve out of the jurisdiction on the First, Third and Fourth Respondent is not required. 2. The claim has come to the attention of the First, Third and Fourth Respondents in any event and, if permission to serve out of the jurisdiction ie required, the claim shall be treated as having already been delivered to those Respondents in accordance with r91 ET Rules of Procedure 2013. 3. The ACAS Certificates were obtained in accordance with the prescribed requirements of the Early Conciliation Scheme. 4. The ET1 should not have been rejected; the correct addresses for the First, Third and Fourth Respondents were contained in it. 5. The ET1 contained Early Conciliation numbers and should not be rejected. Case number: 2201437/2020 2 REASONS The Claim and the Respondents 1. By a claim form presented on 6 March 2020 the Claimant brought complaints of constructive ordinary unfair dismissal (sections 95(1)(c) and 98(4) of the Employment Rights Act 1996), protected disclosure automatically unfair dismissal (s103A ERA 1996) and Regulation 7(1) TUPE 2006 automatic unfair dismissal, protected disclosure detriment (ss43B & 47 ERA 1996) and breach of Article 38(3) Regulation (EU) 2016/6789, General Data Protection Regulation, as enacted by the Data Protection Act 2018, against the Respondents. 2. The Claimant was employed by the Second Respondent, a UK company. 3. The Claimant also contends that he was employed by the First Respondent, which is the parent company of NCR UK Group Limited, which in turn is the holding company for the Second Respondent. The First Respondent is a US corporation incorporated in Maryland in the USA and headquartered in Atlanta, Georgia, USA. The Third Respondent is James Bedore, Executive Vice President, General Counsel and Secretary to the First Respondent. The Fourth Respondent was the Claimant’s line manager is the Law President, Chief Counsel of Software and Services and, since October 2018, the Chief Privacy Officer of the First Respondent. The Third and Fourth Respondents are not resident, domiciled or otherwise present in the United Kingdom. They are resident in the USA. 4. The Claimant alleges that the First Respondent is an employer for the purposes of s43K(2) ERA 1996 and that the Third and Fourth Respondents are “other workers” of the First Respondent (as the Claimant’s employer), pursuant to s47B(1A) ERA 1996. The Claimant contends, for these purposes, that: the Third and Fourth Respondent were responsible for the Claimant’s work duties; the First Respondent operated an annual incentive scheme applicable to the Claimant, which depended on the Claimant and the Third Respondent’s performance; the Claimant’s individual appraisal process and annual performance review were managed by the Fourth Respondent; the Claimant was required to adhere to the First Respondent’s Code of Conduct which created contractual obligations; and that he was required to required to make protected disclosures through the First Respondent’s ethics and compliance office. 5. The Respondents contend that the Claimant required permission to serve the First, Third and Fourth Respondents out of the jurisdiction, which the Claimant did not obtain. They also contend that there were defects in the ACAS EC process and certificates and that the Tribunal should not have accepted the Claimant’s claims. Open Preliminary Hearing 6. This Open Preliminary Hearing was listed to determine the following issues: Case number: 2201437/2020 5 16. By Rules 10 and 12 ET Rules of Procedure 2013, the claim form shall be rejected in certain circumstances. These rules do not contain any specific provisions regarding Respondents outside the jurisdiction, albeit r12(1)(a) & r12(2) provide that a claim, or part of it, will be rejected if an Employment Judge considers that it is one which the Tribunal has no jurisdiction to consider. “10 Rejection: form not used or failure to supply minimum information (1) The Tribunal shall reject a claim if – (a) it is not made on a prescribed form; … (b) it does not contain all of the following information (i) each claimant's name; (ii) each claimant's address; (iii) each respondent's name; (iv) each respondent's address[; or (c) it does not contain all of the following information— (i) an early conciliation number; (ii) confirmation that the claim does not institute any relevant proceedings; or (iii) confirmation that one of the early conciliation exemptions applies]. (2) The form shall be returned to the claimant with a notice of rejection explaining why it has been rejected. The notice shall contain information about how to apply for a reconsideration of the rejection.” 17. Rule 15 specifically governs sending the claim form to respondents, and provides that the Tribunal itself shall do this: “ 15 Sending claim form to respondents (1) Unless the claim is rejected, the Tribunal shall send a copy of the claim form, together with a prescribed response form, to each respondent with a notice which includes information on— (a) whether any part of the claim has been rejected; and (b) how to submit a response to the claim, the time limit for doing so and what will happen if a response is not received by the Tribunal within that time limit.” 18. Rules 87 – 91 ET Rules of Procedure 2013 contain provisions regarding the service of documents. “ 86 Delivery to parties (1) Documents may be delivered to a party (whether by the Tribunal or by another party)— (a) by post; Case number: 2201437/2020 6 (b) by direct delivery to that party's address (including delivery by a courier or messenger service); (c) by electronic communication; or (d) by being handed personally to that party, if an individual and if no representative has been named in the claim form or response; or to any individual representative named in the claim form or response; or, on the occasion of a hearing, to any person identified by the party as representing that party at that hearing. (2) For the purposes of sub-paragraphs (a) to (c) of paragraph (1), the document shall be delivered to the address given in the claim form or response (which shall be the address of the party's representative, if one is named) or to a different address as notified in writing by the party in question. (3) If a party has given both a postal address and one or more electronic addresses, any of them may be used unless the party has indicated in writing that a particular address should or should not be used. 87 Delivery to non-parties (1) Subject to the special cases which are the subject of rule 88, documents shall be sent to non-parties at any address for service which they may have notified and otherwise at any known address or place of business in the United Kingdom or, if the party is a corporate body, at its registered or principal office in the United Kingdom or, if permitted by the President, at an address outside the United Kingdom.” 19. “91 Irregular service A Tribunal may treat any document as delivered to a person, notwithstanding any non-compliance with rules 86 to 88, if satisfied that the document in question, or its substance, has in fact come to the attention of that person.” Previous Versions of ET Rules of Procedure 20. Rule 87 of the 2013 rules differs to previous versions of the rule in earlier Employment Tribunal Procedure Rules. 21. Rule 23(4)(e) of the Rules of Procedure 2001 provided: “23.— Notices, etc… (4) All notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraph (6)) or delivered to or at— (e) in the case of a notice or document directed to a party Case number: 2201437/2020 7 (i) the address specified in his originating application or notice of appearance. (ii) if no such address has been specified, or if a notice sent to such an address has been returned, to any other known address or place of business in the United Kingdom or, if the party is a corporate body, the body's registered or principal office in the United Kingdom, or, in any case, such address or place outside the United Kingdom as the President or a Regional Chairman may allow;…” 22. R 8 of the 2013 Rules also differs from the equivalent r19 in ET Rules of Procedure 2004 “19.— Jurisdiction of tribunals in Scotland and in England & Wales (1) An employment tribunal in England or Wales shall only have jurisdiction to deal with proceedings (referred to as “English and Welsh proceedings” ) where– (a) the respondent or one of the respondents resides or carries on business in England and Wales; (b) had the remedy been by way of action in the county court, the cause of action would have arisen wholly or partly in England and Wales; (c) the proceedings are to determine a question which has been referred to the tribunal by a court in England and Wales; or (d) in the case of proceedings to which Schedule 3, 4 or 5 applies, the proceedings relate to matters arising in England and Wales. (2) An employment tribunal in Scotland shall only have jurisdiction to deal with proceedings (referred to as “Scottish proceedings” ) where– (a) the respondent or one of the respondents resides or carries on business in Scotland; (b) the proceedings relate to a contract of employment the place of execution or performance of which is in Scotland; (c) the proceedings are to determine a question which has been referred to the tribunal by a sheriff in Scotland; or (d) in the case of proceedings to which Schedule 3, 4 or 5 applies, the proceedings relate to matters arising in Scotland.” Civil Procedure Rules 23. Under the Civil Procedure Rules in the civil courts, there is a procedure for obtaining permission to serve a claim form on a defendant outside the jurisdiction (other than where permission is not required under the CPR r. 6.32 or 6.33). The claimant must demonstrate: (a) that he has a good arguable case that at least Case number: 2201437/2020 10 ET pleadings (and other documents) being served without territorial or jurisdictional limitation and without the need for permission: “ 29….. Rule 23(4) of Schedule 1 to the 2001 Regulations contains no limitation on the geographical extent to which Tribunal proceedings may be sent to Respondents as is required by Rule 2(1); and in practice Tribunals, we are told, regularly send Originating Applications and other documents to Respondents based abroad, although we understand that there has been a Tribunal decision that overseas service should only be effected with the permission of a Regional Chairman (see E.L.A Briefing Volume 10 No 3 April 2003 page 47). Service is not the central consideration; the central consideration is whether, in each case, the employee has the benefit of the statutory right upon which he bases his claim; if he does have such a right, then prima facie the Tribunal has jurisdiction to entertain his claim; if he does not, the position is otherwise.” 37. Insofar as there is discussion in Bishop of any need for permission to serve in the ET, as with the doctrine of forum non conveniens, that is in respect of contract claims (by reference to the Extension of Jurisdiction (England and Wales) Order 1994): at [75]. Discussion and Decision 38. There is no specific requirement in the ET Rules of Procedure 2013 for permission to serve respondents out of the jurisdiction to be obtained. This is to be contrasted with the position under the CPRs, which have been stated by the EAT not to apply to the Tribunal in this context, Embassy of Brazil v Mr D A De Castro Cerqueira [2014] ICR 7031, at paragraphs [18] and [21]. 39. The Respondents contend that, nevertheless, the r87 ET Rules of Procedure 2013 does indeed require permission to be obtained from the President to serve proceedings on a potential Respondent outside the jurisdiction. The Respondents contend that a potential Respondent is not a “party” within r86 ET Rules of Procedure 2013. They say that, given that the UK government is a signatory to the Hague Convention, the 2013 Rules of Procedure should be interpreted as requiring permission. The tribunal, as part of the court system, ought to comply with UK treaty obligations. 40. This interpretation of the 2013 would appear to be novel – the only known case in which permission to serve was apparently required by a Tribunal was a 2003 ET case (mentioned in Bishop). That decision is a judgment of the Employment Tribunal at first instance and is, therefore, not binding. The judgment is not reported in the law reports. The sole reference to the judgment in any case law is in Bishop, above, which did not apply it. Its reasoning no longer strictly applies as it is based on a textual interpretation of the 2001 ET Rules then in force and which are not replicated in the current ET Rules. 41. The r23 ET Rules 2001 specified that documents could be sent by post or delivered to or at— “(e) in the case of a notice or document directed to a party (i) the address specified in his originating application or notice of appearance.” Where there was no such address specified, the rules contained provisions for Case number: 2201437/2020 11 sending the document to any other known address or place of business in the United Kingdom or, a corporate body's registered or principal office in the United Kingdom. In the case of addresses outside the UK, the rules provided for service on “ such address or place outside the United Kingdom as the President or a Regional Chairman may allow.” 42. The 2013 Rules do not contain the wording “the address specified in his originating application or notice of appearance”; but, rather, they provide under r86 that “the document shall be delivered to the address given in the claim form or response (which shall be the address of the party's representative, if one is named) or to a different address as notified in writing by the party in question.” 43. R86 appears to allow service of documents on a respondent at an address given either on the claim form, or on the response – not just on the respondent’s own response. 44. Further, r87 of the 2013 rules, which contains very similar wording to the wording of r23(4)( e)(ii) of the 2001 rules regarding permission to serve out of the jurisdiction, applies to “non-parties”, not parties - “ documents shall be sent to non-parties at any address for service which they may have notified and otherwise at any known address or place of business in the United Kingdom or, if the party is a corporate body, at its registered or principal office in the United Kingdom or, if permitted by the President, at an address outside the United Kingdom.” 45. Under the 2013 rules, therefore, service of documents on non-parties outside the jurisdiction requires permission of the President, but not service of documents on parties. 46. I did not agree that the rules treat a respondent as a non-party until it has been served. This is inconsistent with the way in which “party” is used elsewhere in the rules. Party simply means a claimant or respondent, within the meaning of the interpretation provision - Reg 1 ET Regs 2103: “claimant” means the person bringing the claim; “respondent” means the person or persons against whom the claim is made. 47. The rules envisage that “party” applies both to “prospective” claimants and “prospective” respondents – that is, parties who have yet to be formally accepted as parties, or served, by the Tribunal. For example, in the same interpretation provision Reg 1 ET Regs 2013, ‘“Tribunal fee” means any fee which is payable by a party under any enactment in respect of a claim, employer's contract claim, application or judicial mediation in an Employment Tribunal. (emphasis supplied)’ When fees were required to be paid, a prospective claimant was required to pay a fee before the claim had been accepted by the Tribunal. The overriding objective also applies to “parties” – if a respondent was not a party until it had been served, it would not have the benefit of the overriding objective. A respondent would also not have any standing under the rules to apply to the Tribunal for reconsideration of a judgment under r70 ET Rules of Procedure, for example where the respondent had never been served and had thus not entered a response, so that a default judgment had been entered against it. Case number: 2201437/2020 12 48. Underhill J undertook the last review of the ET Rules in 2012/2013, and he devised the 2013 rules. This was after he heard Pervez. 49. Underhill J made clear in Pervez, in relation to r.19 of the ET Rules 2004 (the predecessor to r.8 ET Rules 2013) that the purpose of the rule was not simply to regulate the distribution of jurisdiction between tribunals in England & Wales, on the one hand, and Scotland on the other. On the contrary, the wording of the rule had the effect of conferring international jurisdiction on the employment tribunal for cases with a “non-GB” element; “the employment tribunal will have jurisdiction in respect of a particular claim if the acts or omissions which it is necessary to establish in order to constitute a cause of action, or any part of them, are alleged to have occurred in England and Wales”, at para [15(2)]. 50. R.8 ET Rules 2013, which Underhill J was responsible for drafting, even more clearly confers jurisdiction for claims with a foreign element, because only part of the claim requires a connection with GB, r.8(2)(a) to (d). 51. Therefore, in interpreting the 2013 rules, it is relevant that there is an express contemplation of a potential foreign element in ET proceedings and, specifically, proceedings against persons outside the UK in rule 8. Nevertheless, the rules do not specifically require permission to serve respondents out of the jurisdiction. 52. This interpretation of the 2013 Rules as not requiring permission to serve proceedings on a respondent outside the jurisdiction appears consistent with the EAT decisions in Embassy of Brazil v Mr D A De Castro Cerqueira [2014] ICR 7031, Pervez v Macquarie Bank Ltd [2011] ICR 266, and Financial Times Ltd v Bishop [2003] 11 WLUK 702. 53. In Embassy of Brazil v Mr D A De Castro Cerqueira [2014] ICR 7031 the EAT specifically stated in both paragraphs [18] and [21] that the CPR provisions on service, including service outside the jurisdiction, are not directly applicable to proceedings in the employment tribunal. 54. In Pervez v Macquarie Bank Ltd [2011] ICR 266, the President of the EAT ordered that proceedings be served on a Hong Kong company, apparently without considering that permission to serve outside the jurisdiction was required. 55. In Financial Times Ltd v Bishop [2003] 11 WLUK 702, another case about the territorial scope of the ERA 1996), the EAT said that “Rule 23(4) of Schedule 1 to the 2001 Regulations contains no limitation on the geographical extent to which Tribunal proceedings may be sent to Respondents as is required by Rule 2(1); and in practice Tribunals, we are told, regularly send Originating Applications and other documents to Respondents based abroad.” It noted, but did not apply or approve, an ET decision that service on respondents outside the jurisdiction required the permission of the Tribunal. 56. Insofar as the Respondents contend that the 2013 rules ought to be interpreted in accordance with the Hague Convention, so that the Respondent in a claim is a non-party until it has been served, it is notable that the rules of service on foreign States in State Immunity Act 1978 do override the provisions of the ET Rules Case number: 2201437/2020 15 claim as having been delivered to all the Respondents in accordance with the rules. Brussels Recast and r8 ET Rules of Procedure 70. It was not necessary for me to decide whether permission to serve outside the jurisdiction was, in any event, not required in respect of the First Respondent because the application of the Recast Brussels Regulation negated the requirement for permission, by analogy with CPR r6.33(2)(b)(iii). 71. Nor was it necessary for me to decide the Claimant’s arguments regarding the jurisdiction of the Tribunal over the Third and Fourth Respondents due to application of r.8(2) ET Rules 2013. Validity of ACAS Certificates and ET1 72. The Respondents contend that the ACAS Certificates in this case were defective. They say that the claimant gave ACAS the wrong address information (“c/o NCR Limited” - the address of the Second Respondent) and the ACAS certificates were therefore not issued in the prescribed manner. 73. Under s. 18A(1) Employment Tribunals Act 1996, before presenting an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. The prescribed information is set out in ECR Sch 2(2) and provides that an early conciliation form must contain the prospective respondent’s name and address. Further, under s. 18A(4) and ECR Sch 2(8) the early conciliation certificate must be issued to the Claimant containing the address of the prospective respondent. 74. The Respondents contend that It is obvious that the address given to ACAS must be the correct address of the prospective respondent. Providing an incorrect address does not comply with the requirement to provide the prescribed information. If a claimant provides an incorrect address for a respondent, the ACAS conciliation procedure will clearly not follow the intended course. 75. The Respondents also contend that, as the Claimant did not comply with ECR Sch 2(2), he was not entitled to present the claim under s. 18A(1) ETA 1996. Therefore the Claimant did not have certificates within the meaning of s. 18A(4). Under s. 18A(8) the claimant may not present an application to institute relevant proceedings without a certificate under s. 18A(4). Therefore the Claimant was also not entitled to present the claim under s. 18A(8). 76. The Respondents further say that the addresses inserted in the ET1 for the First, Third and Fourth Respondents were also incorrect in the same way. Indeed, the Claimant did not indicate “c/o NCR Limited” so as to indicate that it was not the actual address, unlike on the ACAS certificates. 77. The Respondents therefore argue that the ET1 should have been rejected under rule 10(1)(b)(iv) ET Rules of Procedure 2013 against First, Third and Fourth Case number: 2201437/2020 16 Respondents on the basis that the correct addresses were not contained in the ET1. The misinformation provided in the ET1 was of the Claimant’s own making and a deliberate choice. This is not a case of mere typographical or inconsequential errors. As referred to above, had the Claimant inserted the correct addresses, the Tribunal service would have been alerted to the foreign addresses of R1, R3 and R4 and could have referred the matter to an Employment Judge regarding the issues of service abroad and jurisdiction. 78. The Respondents say that there is no power to remedy a defective claim form if the form is not returned under rule 10(2) or rule 12(3) and the necessary application for reconsideration made under rule 13; Cranwell v Cullen UKEATPAS/0046/14, unreported, 20 March 2015. 79. For the reasons same reasons the Respondents say that the claim form did not contain an early conciliation number in respect of the First, Third and Fourth Respondents, as the certificates were not issued in accordance with the ECR. Accordingly, the ET1 ought to have been rejected under rule 10(1)(c). Although the tribunal has a discretion to overlook certain kinds of “minor errors” under rule 12(2A), there is no discretion to overlook minor errors in the EC certificate number on a claim form; Sterling v United Learning Trust UKEAT/0439/14 (18 February 2015, unreported). Relevant Provisions 80. Rule 12 ET Rules of Procedure 2013 provides: Rejection: substantive defects (1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be— (a) one which the Tribunal has no jurisdiction to consider; … (b) in a form which cannot sensibly be responded to or is otherwise an abuse of the process; [(c) one which institutes relevant proceedings and is made on a claim form that does not contain either an early conciliation number or confirmation that one of the early conciliation exemptions applies; (d) one which institutes relevant proceedings, is made on a claim form which contains confirmation that one of the early conciliation exemptions applies, and an early conciliation exemption does not apply; (e) one which institutes relevant proceedings and the name of the claimant on the claim form is not the same as the name of the prospective claimant on the early conciliation certificate to which the early conciliation number relates; or (f) one which institutes relevant proceedings and the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation number relates]. (2) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraphs (a)[, (b), (c) or (d)] of paragraph (1). Case number: 2201437/2020 17 [(2A) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraph (e) or (f) of paragraph (1) unless the Judge considers that the claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim.] (3) If the claim is rejected, the form shall be returned to the claimant together with a notice of rejection giving the Judge's reasons for rejecting the claim, or part of it. The notice shall contain information about how to apply for a reconsideration of the rejection. 81. S18 A Employment Tribunals Act 1996 provides: “ [18A Requirement to contact ACAS before instituting proceedings (1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. This is subject to subsection (7). (2) On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer. (3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings. (4) If— (a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or (b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant. 82. Rule 2. Early Conciliation Rules Of Procedure 2014 provides: “2(1) An early conciliation form which is presented to ACAS must be— (a) submitted using the online form on the ACAS website; or (b) sent by post to the ACAS address set out on the early conciliation form. (2) An early conciliation form must contain—