Justin Lawes v Fleet Maritime Services (Bermuda) Ltd

A tribunal’s decision to defer, without determining, a jurisdictional issue is a case management order under rule 1(3)(a) of the Employment Tribunal Rules 2013. An appeal against such an order succeeds only where the order was certainly wrong.

A tribunal should ordinarily determine issues within its jurisdiction, particularly after evidence has been heard. A stay may nevertheless be justified where territorial jurisdiction raises unusual complexity. Material differences between court procedures for service outside the jurisdiction and tribunal procedure may make the court the more appropriate forum to decide the issue. The tribunal must consider all relevant circumstances, including procedural appropriateness and complexity.

The claimant, a cruise-ship captain employed by a Bermudan company, brought a contractual claim including holiday pay. The Employment Tribunal held that it lacked jurisdiction over other statutory claims. It deferred its decision on jurisdiction over the contractual claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.

Employment Judge Ryan considered that a court might first accept jurisdiction under international private-law principles. He stayed the tribunal issue so that any court proceedings could determine that question. The claimant appealed on the ground that the Employment Judge had failed to decide an issue he was required to determine.

The central issue was whether the deferral was an impermissible failure to determine jurisdiction or a permissible case management stay.

1. Appeal dismissed. The Employment Judge’s order was a case management decision, not a judgment. It did not determine whether the tribunal had jurisdiction over the contractual claim. It therefore fell within rule 1(3)(a), rather than rule 1(3)(b), of the Employment Tribunal Rules 2013. The appeal could succeed only if the order was certainly wrong.

2. A tribunal should generally determine issues before it where it has jurisdiction. A stay after a hearing at which evidence has been received will usually be unsuitable, and a mere reservation of a claimant’s position for possible court proceedings would generally not justify declining to decide the tribunal issue.

3. That general approach did not make this stay certainly wrong. Articles 3 and 4 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 require that a court in England and Wales would have jurisdiction to hear the contractual claim. Court proceedings involving service outside the jurisdiction have a two-stage procedural protection under rule 6.36 of the Civil Procedure Rules and Practice Direction 6B. Tribunal proceedings have materially different service arrangements.

4. Applying the approach in Lycatel Services Ltd v Robin Schneider, [2023] EAT 81, the procedural difference created unusual complexity. It was therefore within the Employment Judge’s discretion to stay the issue. The Employment Judge’s reference to the hierarchy of courts was shorthand for those relevant procedural differences. The EAT did not decide whether a prior court decision was legally required before the tribunal could have jurisdiction.

5. The parties could seek variation of the case management order under rule 29, including because it had been made without submissions. The order was upheld.

• Employment Appeal Tribunal: Appeal dismissed. The EAT upheld the Employment Judge’s stay of the unresolved contractual-jurisdiction issue.
• Employment Tribunal: Employment Judge Ryan held that the tribunal lacked jurisdiction over aspects of the claims and stayed consideration of jurisdiction over the contractual claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.