Bleuse v MBT Transport Ltd

EAT: Elias J (President): 21 December 2007

The claimant, a German national living in Germany, was employed by a company registered in the United Kingdom. He worked solely in mainland Europe and never in Great Britain. Clause 17 of his contract provided that it was governed by English law and that English courts had exclusive jurisdiction over any disputes. He resigned and made claims of unfair constructive dismissal, breach of contract, unlawful deduction of wages and for holiday pay. His advisers presented the claims a month outside the prescribed three-month time limit, and at a pre-hearing review of the breach of contract claim, which the claimant did not attend and in respect of which the jurisdiction of the employment tribunal was otherwise conceded, a tribunal chairman dismissed the claim, deciding that without an explanation for the delay she was bound to conclude that it would have been reasonably practicable for the claim to have been presented in time. A different chairman dismissed the claims of unfair dismissal and unlawful deduction of wages, on the ground that the territorial scope of the relevant provisions of the Employment Rights Act 1996 did not extend to the claimant since he was not based in Great Britain, and the claim for holiday pay, on the ground that under regulation 1(2) of the Working Time Regulations 1998 they extended to Great Britain only.

The claimant appealed, relying, inter alia, on Council Regulation (EC) No 44/2001 giving the English courts exclusive jurisdiction, and on article 7 of Council Directive 2003/88/EC providing a right to holiday pay.

ELIAS J held:
(1) The cost to the claimant of appearing before the tribunal to give what was apparently uncontested evidence would have been disproportionate to the matter at issue, and the tribunal chairman ought not to have held it against him that he did not give oral evidence. Given the difficulties facing the claimant, who did not speak English and was away from home much of the time, he had not acted unreasonably in relying on his advisers and had acted speedily when initiating the claim, but there was an issue as to whether his advisers might have acted unreasonably and whether he was bound by their actions, and that issue would be remitted to a different tribunal for consideration
(2) The territorial scope of section 94 of the Employment Rights Act 1996, which conferred the right not to be unfairly dismissed, was limited to claims where the employee's base was in Great Britain, and there was no reason for the territorial scope of the provisions in Part II of the Act relating to unlawful deductions from wages to differ. The mere fact that the employer was a company registered in Great Britain was not sufficient to establish it as the claimant’s base, and, as the claimant did not operate from the United Kingdom and had virtually no connection with it, the tribunal chairman was justified in finding that the claimant did not have his base in Great Britain. Section 204(1) of the Employment Rights Act 1996 made it plain that the proper law of the contract was immaterial when considering the reach of the statutory rights, and, accordingly, clause 17 of the claimant’s contract made no difference to the issue of territorial jurisdiction, and Council Regulation (EC) No 44/2001 was concerned with which courts should hear a claim and did not affect the content of the substantive law applicable to a claim.
(3) Where English law was the law of the contract an English court, properly exercising its jurisdiction, had to seek to give effect to directly effective rights derived from a Community Directive, and the right to receive paid annual leave, secured by article 7 of the Working Time Directive 2003/88, was sufficiently precise to be capable of having direct effect, and, although it could not be enforced directly against a private body, the principle of harmonious construction required the court, if possible, to construe domestic legislation so as to give effect to it. Accordingly, the Working Time Regulations 1998 should be construed by modifying the implied territorial limitation in regulation 1(2) so as to ensure the enforcement by the English courts of the right to be paid for annual leave, even if the claimant was not based in Great Britain.

The appeal against the dismissal of the breach of contract claim was allowed.
The appeals in respect of the claims of unfair dismissal and unlawful deduction of wages were dismissed.
The appeal against the dismissal of the holiday pay claim was allowed.

Appearances: Naomi Ling and Ronit Kreisberger (Zimmers) for the claimant; the employers did not appear and were not represented.