EAT Practice and Procedure: Preliminary Issues – A peripatetic employee, who was Danish and had his home in Switzerland, freely entered into a contract with the First Respondent, a company incorporated in Bermuda, by which he was to occupy an international role, based in Switzerland, as its Strategy and Business Development Director. The contract was governed by Bermudian law and provided that the courts of Bermuda should have jurisdiction. Before doing so he had first considered but rejected a contract which provided for him to work in England, in a contract governed by UK law. He ensured that he never spent so many days in the UK as to be subject to UK taxation, and though whilst working in the UK (which he did for longer than in any other single jurisdiction) he stayed in accommodation in Esher, he arranged for it to be contracted for by a family company rather than in his own name. He was dismissed (he said as the result of making a public interest disclosure) in England, and was told of his dismissal by an employee of the Second Respondent. The ET held his employment was not sufficiently closely connected with the UK and UK law for him to be able to claim; that in any event the UK courts did not have jurisdiction on the proper application of the Brussels Regulation, and that the Rome Convention did not have the effect that the applicable law was that of the UK.
On appeal, the Claimant withdrew a ground alleging that the ET erred in failing to hold him an employee of the Second Respondent. He asserted that the ET had reached a perverse decision, as to the base from which he operated, and as to the conclusion that his employment was not sufficiently closely connected with the UK and UK law. This was rejected: it was not perverse. For the same reason, the challenge to the conclusion based on the Rome Convention had to fail (though under the Rome Regulation, as the applicable instrument, rather than the Convention),. Though the judge had failed to pay regard to an amendment of the ET1 when holding that The Brussels Regulation did not confer jurisdiction, her decision was plainly and obviously right on other grounds, since she was wrong to hold that the Second Respondent was an agent of the First, within the meaning of the Regulation: from the facts she found, the only permissible conclusion was to the contrary. The appeal was dismissed.
Langstaff P J
[2015] UKEAT 0345 – 14 – 2804
Bailii
England and Wales
Employment
Updated: 30 December 2021; Ref: scu.546434