TwistDX Limited & Ors v Dr N Armes & Ors

The appeal concerned an Employment Tribunal decision refusing to strike out parts of claims brought by former senior executives of TwistDX. The central legal principles were the high threshold for striking out discrimination and employment claims (following Mechkarov/Meek authorities and Rule 37 ET Rules) and the distinct concepts of international jurisdiction under the Recast Brussels Regulation and domestic territorial scope under the Employment Tribunal Rules (Rule 8).

The Employment Appeal Tribunal held that the Employment Tribunal did not err in law in refusing to strike out claims against the United States parent company (Abbott Laboratories) and the US-based individuals because there were live factual disputes (notably about control/agency and establishment/branch status) and the respondents had not shown the claimants had no reasonable prospect of establishing international jurisdiction under the Recast Brussels Regulation or of establishing territorial jurisdiction under Rule 8. The EAT found, however, that the Employment Judge failed to give adequate reasons for rejecting the strike out application against two UK-based individual respondents and remitted that aspect for reconsideration.

Background and parties: The claimants (Dr Niall Armes and Mrs Helen Kent-Armes) were senior executives of TwistDX. They brought multiple employment claims following dismissal, including automatic unfair dismissal for protected disclosures (Employment Rights Act 1996), detriment claims and discrimination claims. The claimants sued their employing UK company, a US parent company (Abbott Laboratories), several US-based individuals alleged to have acted as agents, and a number of UK individuals.

Procedural posture and relief sought: The matter before the Employment Tribunal was a strike out application (Rule 37) and a preliminary jurisdictional determination, directed by an earlier case management order. The respondents sought striking out of claims against the US company and US individuals for lack of international/territorial jurisdiction and against two UK individuals for having no reasonable cause of action. The Employment Tribunal (Employment Judge Kurrein) refused strike out. The respondents appealed to the EAT.

Issues framed:

• Whether, as a matter of private international law (Recast Brussels Regulation 1215/2012), Abbott Laboratories could be treated as the claimants' "employer" (or whether TwistDX was a branch/agency/establishment of Abbott) such that the Employment Tribunal had international jurisdiction;
• Whether Rule 8 of the Employment Tribunal Rules 2013 or other bases gave the Employment Tribunal territorial jurisdiction over the US individuals;
• Whether the claims against two UK individuals should be struck out for having no reasonable prospect of success; and
• Whether the Employment Tribunal gave sufficient reasons for its conclusions (Rule 62 / Meek compliance).

Court’s reasoning and decision: The EAT emphasised the stringent threshold for striking out and the need to take the claimant’s case at its highest where fact-sensitive disputes requiring oral evidence exist. The Employment Judge had heard limited and, in places, one-sided evidence; crucial factual matters (notably the degree of control by Abbott over TwistDX and the factual matrix relevant to agency/establishment) stayed in dispute. Given those disputed facts and the autonomous EU concept of "employer" for the Recast Brussels Regulation (as explained in authorities such as Samengo-Turner and Petter), it was not unlawful for the Employment Tribunal to conclude the claimants’ jurisdictional case was reasonably arguable. On the territorial jurisdiction point under Rule 8 the EAT accepted that both sides had arguable positions and that a substantive factual determination was required. The EAT allowed the appeal in part: it upheld the Employment Judge’s refusal to strike out as to the US defendants but allowed the appeal insofar as the judge failed to give adequate reasons on the strike out application against two UK individuals and remitted that discrete issue for reconsideration by the Employment Tribunal where practicable.

Appeal allowed in part. The EAT held that the Employment Tribunal did not err in law in refusing to strike out claims against the US parent company and US-based individuals because the respondents failed to show the claimants had no reasonable prospect of establishing international jurisdiction; however the Employment Judge gave insufficient reasons when rejecting strike out of claims against two UK-based individuals, and that limited issue is remitted for reconsideration.