Pervez v Macquarie Bank Ltd (London Branch)

Employment tribunal jurisdiction is not confined by a narrow reading of carry on business where that would leave statutory employment rights without an effective forum. An overseas employer may carry on business in England and Wales by seconding an employee to work at an establishment here, even where supplying employees is not part of its ordinary business. The conclusion depends on the circumstances, including the duration of the secondment and the employee’s integration into the host business. A worker employed by an overseas company may also fall within the territorial reach of substantive employment legislation where the statutory conditions are satisfied.

The claimant was employed by a Hong Kong company and seconded to work in London for an associated company. His claims included unfair dismissal, race and religious discrimination, unlawful deduction of wages and failure to provide written reasons for dismissal. The Employment Tribunal held that the Hong Kong employer did not carry on business in England or Wales under regulation 19(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, refused joinder of that employer and dismissed the claim. It also refused permission to amend to add whistleblowing claims under sections 47B and 103A of the Employment Rights Act 1996. The appeal concerned the tribunal’s territorial jurisdiction and the refusal to amend.

1. Jurisdiction appeal allowed. The claimant’s discrimination claims fell within the statutory requirement that employment be at an establishment in Great Britain under section 8 of the Race Relations Act 1976 and regulation 9 of the Employment Equality (Religion or Belief) Regulations 2003. The claimant did his work in Great Britain.
2. For the claims under the Employment Rights Act 1996, Lawson v Serco Ltd established that an employee working in Great Britain at the time of dismissal may bring an unfair dismissal claim, subject to the qualification concerning casual visits. A peripatetic employee may be regarded as working in Great Britain if based there. The claimant was working in London on a settled and indefinite basis, as part of the host company’s operation, reporting to its managers and paid by it. He was based in London during the secondment.
3. Regulation 19(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 had to be construed so that it did not deprive employees of a forum for rights conferred by primary legislation. In the particular context, the Hong Kong employer carried on business in England and Wales by seconding the claimant to work at an establishment here. This was a strained but permissible construction, dependent on the facts. Shorter or less integrated secondments might produce a different result.
4. The claimant’s employer was joined as a respondent. Amended details of claim were directed to be served, with liberty to serve an amended response.
5. Whistleblowing amendment refused. The application was well out of time. The proposed claims were thinly pleaded, artificial and far-fetched. It was inconceivable that the solicitors’ letter, written after the assignment had been terminated and the claimant had been asked to resign, was the principal reason for dismissal. The appeal on this issue was dismissed.

• Employment Tribunal, London Central: refused joinder of Macquarie Securities Ltd and dismissed the claims on the basis that regulation 19(1) deprived the tribunal of jurisdiction. It also refused permission to amend to add whistleblowing claims.
• Employment Appeal Tribunal: allowed the jurisdiction appeal, ordered joinder and directed amended pleadings; dismissed the appeal concerning the proposed sections 47B and 103A claims.