Justin Lawes v Fleet Maritime Services (Bermuda) Ltd

The Employment Appeal Tribunal dismissed the appeal against a reserved preliminary judgment in which the Employment Judge effectively stayed a decision on whether the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 gave the tribunal territorial jurisdiction to hear a breach of contract claim. The EAT held that the judge's step was a case management decision under rule 1(3)(a) of the Employment Tribunal Rules 2013 and that the appropriate test on appeal was whether the judge was "certainly wrong". The tribunal's decision to defer determination was justified by (i) the distinct two-stage procedural protection in the civil courts for service out of the jurisdiction under the Civil Procedure Rules and Practice Direction 6B, (ii) the potential significance of the courts' decision on international jurisdiction before an employment tribunal exercised the extended jurisdiction in the Order, and (iii) the factors identified in Lycatel Services Ltd v Robin Schneider [2023] EAT 81 about staying proceedings where the courts may be the more appropriate forum. The judge had left parties free to apply to the tribunal later and had not denied a reasonable opportunity to make representations.

This appeal concerned a preliminary Employment Tribunal decision by Employment Judge Ryan after a two-day hearing in October 2022. The Claimant, a ship's captain, brought a breach of contract claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994; the tribunal was asked to decide whether it had territorial jurisdiction to hear that claim.

The tribunal judge found facts about the Claimant's recruitment and onboarding in Southampton, elements of HR and PAYE activity being run from Southampton, and that the respondent employer was incorporated in Bermuda with operational headquarters in California and onboarding in Naples. The contract contained a choice of English law but no exclusive jurisdiction clause. The judge concluded that, while the tribunal had no jurisdiction for certain statutory claims, he would not finally determine whether the tribunal had territorial jurisdiction under the Extension Order for the breach of contract claim until a court in England and Wales had decided whether it would accept jurisdiction under ordinary private international law principles.

The Claimant appealed on the narrow ground that the Employment Judge should have decided the jurisdictional question rather than reserve it. The Respondent argued the judge had made a proper case management decision that permitted the Claimant to pursue court proceedings about jurisdiction without being constrained by an Employment Tribunal ruling.

The EAT analysed the legal framework: Articles 3–5 of the 1994 Order, section 131(2) of the Employment Protection (Consolidation) Act 1978 (as relevant to the Order), the Civil Procedure Rules rule 6.36 and Practice Direction 6B (concerning service out of the jurisdiction and factors such as governing law and where a breach is committed), and the Employment Tribunal Rules 2013 (including rules 1(3), 8, 15, 29, 70 and 86). The EAT applied Lycatel on the circumstances in which it is appropriate to stay tribunal proceedings where parallel court proceedings may be more suitable.

The EAT concluded the Employment Judge made a case management decision within rule 1(3)(a), so the applicable appellate test was whether the decision was certainly wrong. The judge was entitled to take account of the different procedural regimes for service and jurisdiction in the courts and the tribunal, the potential complexity of the jurisdictional question, and the convenience of the courts handling any extant court proceedings on jurisdiction. The judge had not finally determined the issue and had left parties free to return to the tribunal. For those reasons the EAT dismissed the appeal.

The appeal was dismissed. The Employment Judge's decision was a case management order under rule 1(3)(a) of the Employment Tribunal Rules 2013 and fell within his discretion. Given the differences between the civil courts' two-stage approach to service and the Employment Tribunal rules, the potential complexity of the territorial jurisdiction issue and the guidance in Lycatel, it was not "certainly wrong" for the judge to stay determination of the contractual jurisdiction question pending any court decision.

This appeal arose from a reserved preliminary judgment of Employment Judge Ryan following a two-day Employment Tribunal hearing in October 2022. At sift stage Judge Susan Walker permitted one ground of appeal to proceed to the EAT. The Employment Appeal Tribunal heard the appeal and handed down this judgment, [2024] EAT 77.