The Claimant was employed under a contract with a Cayman Islands firm, HWR. The Contract stated that it was governed by Cayman Islands law and subject to the jurisdiction of the Cayman Islands Courts. In January 2018, she was dismissed with a payment in lieu. She contended that the notice failed to comply with Cayman Islands Labour Law and was ineffective to terminate her contract. Three of the partners in the firm resided in the UK and the Claimant issued proceedings here. By the time she lodged her claim in the Tribunal, more than three months had elapsed since the payment in lieu. She also failed to obtain an Early Conciliation Certificate before lodging her claim. The Tribunal found that, notwithstanding the terms of her contract, she was employed by another Caymans entity, HG. It also held that there was no territorial jurisdiction to consider the claim, the Caymans being the proper forum, that there had been a failure to comply with EC requirements and that the claim was out of time. The claim was dismissed for want of jurisdiction. In coming to its conclusions the Tribunal rejected the Claimant’s claim that certain correspondence was without prejudice.
The Claimant appealed against the findings as to the identity of the employer, EC compliance, time limits, territorial jurisdiction and without prejudice privilege, amongst other matters.
Held, allowing the appeal in part, that the Tribunal had erred in concluding that HG was the employer. The written material was clear that HWR was the employer and everything in the parties’ relationship thereafter was consistent with that. On a proper application of the principles in Autoclenz, the only conclusion was that HWR was the employer. It followed that the Claimant was entitled, pursuant to Brussels Recast, to issue proceedings against those of the partners in HWR domiciled in the UK. Accordingly, the Tribunal had territorial jurisdiction over the claim. The Tribunal had also erred in failing to treat the correspondence as covered by without prejudice privilege in that there was no unambiguous impropriety here.
However, the Tribunal’s conclusions as to EC and the failure to comply with time limits were correct. Those jurisdictional hurdles had not been overcome and so the case remains dismissed for want of jurisdiction, notwithstanding the EAT’s findings on other matters.
Citations:
[2020] UKEAT 0018 – 20 – 2112
Links:
Jurisdiction:
England and Wales
Employment
Updated: 09 December 2022; Ref: scu.661668