Jurisdiction and Stays

An very important decision, Lawson v Serco Ltd, has been handed down by the EAT (delivered 11th March 2003).

The case is authority for the proposition that:

(1) employment tribunals have jurisdiction to hear claims where the Respondent is incorporated in, or carries on business in, England and Wales - irrespective of the applicable law to the contract or where the work takes place; and,

(2) employment tribunals have no jurisdiction to stay cases, so as to enable them to be determined in a more fitting jurisdiction.


The Facts

Mr Lawson worked as a security consultant for Serco Ltd, a company registered in the UK. He worked on Ascension Island in the South Pacific. He was domiciled on Ascension Island and did not pay UK tax because of working abroad. He was subject to management in the Ascension Island.

He brought a claim, heard before the Watford tribunal, for unfair constructive dismissal, alleging breaches of the Working Time Regulations. The Watford tribunal dismissed his claim for lack of jurisdiction.


The EAT's Decision

The EAT held that the Employment Rights Act 1996 applies to any employer who is domiciled/registered in England or Wales, or who 'carried on business' in England or Wales, irrespective of where the work took place or what the contract said about the applicable law.

Therefore, it held, an English tribunal had jurisdiction to hear Mr Lawson's claim, notwithstanding that he worked in the South Pacific.

It then considered that argument that the English proceedings should be stayed on the basis that Ascension Island was the more appropriate and convenient forum, applying normal principles of international law. It stated that:

"It is clear to us that there is no power to stay proceedings before a tribunal, and that once jurisdiction is established, the Tribunal cannot close its doors to parties who wish to appear before it."
For similar reasons, the EAT held that the Working Time Regulations 1998 apply in the Ascension Islands.


Comment

This is a momentous decision in terms of widening the jurisdiction of employment tribunals. I do not know whether leave was given (or sought) to go to the Court of Appeal.

Leaving aside jurisdictional issues, an important practical implication is that (unless this decision is overturned) tribunals will not be able to:

(a) stay cases pending disclosure of medical records. In many cases where GP notes are relevant, but the court/tribunal lacks power to order disclosure (as they are not in the Applicant's possession or control), the way to 'force' the Applicant to consent to the GP releasing the notes is by staying the case until s/he gives consent. This will no longer be possible, and it may mean that Respondents have no effective method of obtaining copies of medical records in litigation. This is particularly important in cases where the Applicant claims damages for personal injury.

(b) stay cases pending internal appeals (which can last for many, many months - if not years - with public sector employers);

(c) stay all employment tribunal cases pending clarification of the law from the high appellate courts, as we have seen in recent years with the Liversidge cases (whether chief constables are vicariously liable for harassment by their junior officers) or the Seymour Smith legislation (qualifying period for unfair dismissal, where thousands of cases were stayed pending the result).