Y Saloo v Interserve Learning and Employment (Services) Ltd

The Employment Appeal Tribunal refused permission to pursue an appeal against an Employment Tribunal decision that the claimant was employed by ESG Saudi Arabia LLC and not by Interserve Learning and Employment (Services) Limited, and that there was no territorial jurisdiction to hear his unfair dismissal claim. Key legal principles applied were the territorial-jurisdiction approach derived from Lawson v Serco Ltd and related authorities, the requirement for permission before treating a witness as an expert (as discussed with reference to Morgan), and the Porter v Magill test for apparent bias. The EAT concluded that the tribunal had properly analysed the contractual documentation, weighed the relevant factors when determining employer identity and territorial connection, and that any arguable error about Mr Brown being treated as an expert did not affect the outcome. The proposed ground of apparent or actual bias was neither timely raised with the EAT nor, on the merits, arguably established.

This was an application under rule 3(10) seeking permission to pursue an appeal from an Employment Tribunal decision. The claimant was a chemistry teacher working in the Kingdom of Saudi Arabia whose fixed-term contract was not renewed. He issued proceedings for unfair dismissal against Interserve Learning and Employment (Services) Limited. The respondent contended that the claimant was employed by ESG Saudi Arabia LLC and that the Employment Tribunal lacked territorial jurisdiction.

Procedural history

• The Employment Tribunal (Judge T R Smith) heard the case on 12–13 August 2020 and, in a reserved judgment, found the claimant was employed by ESG and not de facto employed by the respondent, and dismissed the claim for lack of territorial jurisdiction.
• The claimant applied for reconsideration (refused), complained to the regional employment judge (REJ), and later presented a notice of appeal. HHJ Barklem considered the proposed grounds on paper and found them not arguable, prompting the claimant to apply under rule 3(10) and a hearing before HHJ Auerbach on 5 August 2021.

Nature of the claim / relief sought

The claimant sought permission to appeal the Employment Tribunal’s findings on employer identity, the treatment of evidence (including a challenge to the tribunal’s treatment of the respondent’s witness Mr Brown as an expert), alleged failures to give proper weight to the claimant’s evidence, a contention that s94(1) Employment Rights Act 1996 might apply, and an allegation of actual or apparent bias on the part of the Employment Judge.

Issues framed by the EAT

1. Whether the tribunal erred in treating Mr Brown as an expert without permission;
2. Whether the tribunal ignored or improperly discounted the claimant’s evidence or failed to weigh relevant factors;
3. Whether the tribunal failed to consider the applicability of s94(1) ERA 1996; and
4. Whether there was a properly arguable case of actual or apparent bias.

Court’s reasoning and outcome

The EAT examined the tribunal’s detailed findings on contractual documentation, working arrangements, management, policies and the question of access to Saudi remedies. On expert evidence, the EAT accepted that some of Mr Brown’s testimony had an expert element but concluded much was factual and, crucially, that even if the tribunal had erred in treating him as an expert this would not have affected the outcome because the tribunal expressly proceeded on an alternative basis which was legally sound (referring to authorities such as Dhunna and Hamam and applying Lawson v Serco). The EAT rejected arguments the tribunal had ignored the claimant’s evidence or failed to weigh matters properly because the decision contained detailed consideration of the points relied upon by the claimant. The claim that s94(1) ERA 1996 had not been considered was not shown to raise an arguable error. On bias, the EAT treated the allegation as raised late and, on the merits, applied the Porter v Magill test and concluded that any indirect connections relied on were too tenuous to give rise to an appearance of bias. For these reasons the EAT dismissed the application for permission to appeal.

This appeal is dismissed. The EAT held that the Employment Tribunal had correctly found the claimant was employed by ESG Saudi Arabia LLC and that there was no territorial jurisdiction to hear the unfair dismissal claim. The EAT found no arguable error in the tribunal’s treatment of the evidence, concluded any procedural defect in treating a witness as an expert did not affect the outcome, and held the allegation of actual or apparent bias was neither timely pursued nor arguably made out under the Porter v Magill test.

Employment Tribunal hearing at Leeds on 12–13 August 2020 (Employment Judge T R Smith): reserved judgment finding employer was ESG Saudi Arabia LLC and no territorial jurisdiction; reconsideration refused (letter of 28–29 September 2020); regional employment judge correspondence (27 October 2020 and July 2021) concluding complaint of bias was not to be dealt with by complaints process and should, if pursued, be appealed to the EAT; HHJ Barklem: initial paper view that proposed grounds were not arguable; Rule 3(10) hearing before HHJ Auerbach on 5 August 2021 resulting in dismissal of the application for permission to appeal. Neutral citation: [2022] EAT 22.