Curran & Sons Ltd v Beswinski

An employment tribunal’s territorial jurisdiction depends on whether the employer resides or carries on business in England and Wales, rather than simply where the employee lives, works or is based. A tribunal must identify and explain the factors relevant to the employer’s business location. Insufficient reasons constitute an error of law where they leave it unclear whether the correct question was addressed. An appeal should not be rejected merely because the tribunal may ultimately have reached the right conclusion if that conclusion is not plainly and obviously compelled by the findings.

The employee brought claims for holiday pay, failure to provide a statement of terms and breach of contract against a transport company based in Bangor, Northern Ireland. The Employment Tribunal accepted jurisdiction under rule 19(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, relying on the employee’s work, residence and the transport activities undertaken in England and Wales.

The employer appealed, arguing that the tribunal had applied authorities concerning the employee’s territorial connection rather than the distinct question whether the employer carried on business in England and Wales. The central issues were whether the tribunal had asked the correct jurisdictional question and whether its reasons were sufficient.

1. Appeal allowed and case remitted. The Employment Tribunal’s findings of fact were not open to challenge on the evidence before it. The remission was confined to the question where the employer carried on business and to any further evidence, submissions and authorities relevant to that question.
2. Rule 19(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 asks whether the respondent resides or carries on business in England and Wales. That is analytically different from asking where the employee lives, works or is based. The employee’s place of work may be relevant, but it does not necessarily establish where the employer carries on business.
3. The tribunal’s reliance on Bleuse v MBT Transport Ltd & Another, Lawson v Serco Ltd and Todd v British Midlands Airways Ltd indicated that it may have addressed the wrong jurisdictional question. Those authorities concerned the territorial connection of an employee and did not directly determine where the employer conducted business.
4. An Employment Judge must give sufficient reasons to explain why the decision was reached, identify the matters treated as relevant, and enable appellate review. The reasons here did not disclose what weight was given to the employee’s residence, work in England and Wales, or other facts bearing on the employer’s business.
5. Although the facts strongly suggested that the transport company carried on business in England and Wales, the conclusion was not plainly and obviously compelled. The appeal therefore could not be dismissed despite the tribunal’s error.

• Employment Tribunal: On a pre-hearing review, the tribunal accepted jurisdiction under rule 19(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Reasons were delivered on 3 February 2009.
• Employment Appeal Tribunal: The appeal was allowed because the tribunal had failed sufficiently to address the question whether the employer carried on business in England and Wales. The case was remitted for reconsideration on that issue.