Clark v Harney Westwood & Riegels (a Firm) & Ors

In identifying an employer where more than one entity is involved, a tribunal must start with the written agreement and ask whether it records the parties’ true agreement. Subsequent dealings may assist in determining what was initially agreed, but documents created without an employee’s knowledge will rarely persuasively establish a different employer. If the agreement identifies one employer, a tribunal must identify how any later substitution occurred, for example by novation.

Early conciliation is mandatory before relevant Employment Tribunal proceedings, including contractual claims under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and unlawful-deduction claims brought under section 23 of the Employment Rights Act 1996. Without-prejudice protection is displaced for unambiguous impropriety only in the clearest case of abuse of the privileged occasion.

The Claimant, a barrister, accepted an employment contract expressly naming Harney Westwood and Riegels (HWR) as her employer for work in the Cayman Islands. She was dismissed on 29 January 2018 with a payment in lieu of notice. She alleged that the payment and dismissal were ineffective and brought claims concerning contractual sums, tax and unlawful deductions from wages.

The Employment Tribunal held that a separate Cayman partnership, Harneys Gill (HG), was the employer; that it lacked territorial jurisdiction; that the Claimant had failed to complete early conciliation before presenting her first claim; and that the claim was out of time. It also admitted an email said to be without prejudice. A second claim was rejected and reconsideration refused.

The EAT considered the identity of the employer, territorial jurisdiction, early conciliation, limitation, termination, privilege, the refusal to extend time for an appeal against rejection, and reconsideration of the second claim.

1. The Jurisdiction Appeal was allowed in part, but the first claim remained dismissed for want of jurisdiction. The Tribunal erred in finding that HG, rather than HWR, was the employer. The written contract clearly and unequivocally identified HWR. There was no allegation that it was a sham and no novation or other subsequent event between the parties which substituted HG.

2. The question whether A is employed by B or C may be a mixed question of fact and law where documents and factual material must be evaluated. The written agreement at the inception of the relationship is the starting point. A tribunal must ask whether it records the parties’ true intentions. Subsequent, seamless conduct may illuminate the original agreement, but undisclosed documents prepared by one party, such as work-permit material, should be treated cautiously. They ordinarily provide little evidence of what the other party agreed.

3. All dealings known to the Claimant, including the offer, business cards, salary payments, termination letter and service correspondence, were consistent with HWR being the employer. The work-permit documents were not known to her and could not displace the contract. As partners domiciled in the United Kingdom were jointly and severally liable for HWR’s obligations, the Claimant could sue them here under article 21 of Brussels Recast. The Tribunal therefore had territorial jurisdiction.

4. The Tribunal correctly held that early conciliation was required. The first claim was within the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994; any unlawful-deduction complaint was brought under section 23 of the Employment Rights Act 1996. Both were relevant proceedings. Starting conciliation after filing could not cure the failure for the first claim.

5. The Tribunal did not err in finding that the contract ended on 29 January 2018. Even if the Cayman Labour Law provisions applied as contended, they did not establish that a summary termination accompanied by a payment in lieu was ineffective. The appeal concerning an unpleaded foreign limitation period was not entertained.

6. The February email formed part of without-prejudice settlement discussions. The Tribunal set the threshold for unambiguous impropriety too low: a position inconsistent with an open case, without abuse such as a threat or other improper conduct, did not remove privilege. That error did not affect the independent finding that the employment ended on 29 January 2018. The early-conciliation and time-bar findings remained decisive, so no remittal was ordered.

7. The appeal from the Registrar’s refusal to extend time was dismissed. The Reconsideration Appeal was also dismissed because the second claim remained out of time, notwithstanding early-conciliation compliance and the correction of the employer and territorial-jurisdiction issues.

• Employment Appeal Tribunal: The Jurisdiction Appeal was allowed in part. The Tribunal’s findings on employer identity, territorial jurisdiction and without-prejudice privilege were corrected, but dismissal of the first claim remained effective because early conciliation had not preceded presentation and the claim was out of time. The appeal from the Registrar’s order and the Reconsideration Appeal were dismissed.

• Employment Tribunal: The Central London Employment Tribunal dismissed the first claim for want of jurisdiction. It found that Harneys Gill was the employer, that there was no territorial jurisdiction, that early conciliation requirements had not been met, and that the claim was time-barred. It rejected the second claim under Rule 12(1)(a) of the Employment Tribunal Rules 2013 and later refused reconsideration.