Stena Drilling PTE Limited v Tristan Smith

The Employment Appeal Tribunal held that the Employment Judge erred by failing to distinguish between international (forum) jurisdiction and territorial jurisdiction and by treating territorial rules as an alternative route to international jurisdiction under the amended Civil Jurisdiction and Judgments Act 1982. The Tribunal identified section 15C (and 15D) of the amended CJJA as the exclusive route for establishing international jurisdiction in claims founded on individual contracts of employment commenced after 31 December 2020. It found error in the Employment Judge's reliance on the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 regulation 3 and on an incorrect application of section 199(7) ERA, while upholding the Tribunal's application of the Lawson/Ravat principles to the ERA unfair dismissal claim. Because the factual findings left open the possibility that SDHR (an Aberdeen HR provider) might be the place "where the business which engaged the employee was situated" within section 15C(2)(c), the Employment Appeal Tribunal set aside the judgment and remitted the case for further factual inquiry.

Background and parties:

• The appellant is Stena Drilling PTE Limited, a Singapore company in the Stena Group. The respondent is Mr Tristan Smith, a seafarer who worked for companies in the Stena Group and brought claims following dismissal in October 2021.
• Mr Smith made claims under the Employment Rights Act 1996 (ERA) for unfair dismissal and under the Equality Act 2010 (EqA). The appellant challenged the Employment Tribunal's jurisdiction at a preliminary hearing.

Procedural posture: The Employment Judge (J.M. Hendry) heard agreed evidence and oral testimony and, in a reserved judgment dated 12 July 2022, found that the tribunal had jurisdiction to determine both claims. The appellant appealed to the Employment Appeal Tribunal (EA-2022-SCO-000084-JP).

Nature of relief sought: Declarations and remedies for unfair dismissal under the ERA and discrimination claims under the EqA arising from dismissal.

Issues framed:

• whether the Employment Tribunal had international (forum) jurisdiction under the amended Civil Jurisdiction and Judgments Act 1982, in particular section 15C (and the effect of section 15D);
• whether the Tribunal had territorial jurisdiction under the ERA, including by application of section 199(7) ERA and the common-law principles in Lawson v Serco and Ravat v Halliburton;
• whether the EqA claim fell within the territorial extension in the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 (notably regulation 3), and relatedly whether regulation 4 might apply.

Court's reasoning and decision:

• The EAT held that international jurisdiction and territorial jurisdiction are distinct and must be assessed separately. The amended CJJA (sections 15C/15D) provides the exclusive routes for international jurisdiction in individual employment contract claims starting after 31 December 2020.
• The Employment Judge had misinterpreted Simpson v Interlinks by treating territorial rules as conferring international jurisdiction. That was a material error of law and required setting aside the judgment.
• On the facts found, the Employment Judge correctly excluded sections 15C(2)(a) and (b), and rejected SDHR as an "agent" under 15C(7). However, the judge's reasons were silent or insufficient in relation to section 15C(2)(c) (the place "where the business which engaged the employee was situated"). Factual findings about SDHR's role suggested further inquiry was necessary to determine whether Aberdeen was the relevant place of business for s15C(2)(c).
• The EAT agreed that the Employment Judge erred in applying section 199(7) ERA by focusing on where the claimant might have been asked to work rather than where he in fact worked under his contract; territorial jurisdiction under the ERA therefore depended on the Lawson/Ravat analysis. The EAT did not disturb the judge's ultimate Lawson/Ravat conclusion on the ERA claim because the judge had properly considered the real operation of the contract despite imperfect language about Rome I.
• The Employment Judge's finding that the claimant did not work wholly or partly in the United Kingdom meant regulation 3 of the 2011 Regulations could not apply; reliance on regulation 3 for territorial jurisdiction in respect of the EqA claim was therefore erroneous. The EAT remitted the case for reconsideration of international jurisdiction and, if necessary, territorial jurisdiction for the EqA claim.

Disposition: The Employment Tribunal's decision was set aside and the matter remitted to the same Employment Judge to hear further evidence about SDHR's role and to determine the international jurisdiction question and, if required, the territorial question in relation to the EqA claim.

Appeal allowed in part. The Employment Appeal Tribunal held that the Employment Judge had made a material error of law by failing to treat international (forum) jurisdiction and territorial jurisdiction as separate questions and by treating territorial rules as an alternative route to international jurisdiction under the amended Civil Jurisdiction and Judgments Act 1982. The EAT set aside the Employment Tribunal's judgment and remitted the case to the same Employment Judge to determine, with further factual inquiry into the role of SDHR, whether international jurisdiction can be established under section 15C(2)(c) of the CJJA and, if necessary, to reconsider territorial jurisdiction in relation to the Equality Act claim. The EAT upheld the Tribunal's application of Lawson/Ravat principles to the ERA claim and found error in reliance on regulation 3 of the 2011 Regulations and in the Employment Judge's application of section 199(7) ERA.

Preliminary hearing before Employment Judge J.M. Hendry on jurisdiction; reserved judgment dated 12 July 2022 finding tribunal had jurisdiction. Appeal to the Employment Appeal Tribunal (Case No EA-2022-SCO-000084-JP) heard 29 February and 2 April 2024; judgment of the EAT handed down 18 April 2024 (Neutral Citation [2024] EAT 57).