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In Pervez v Macquarie Bank Ltd (London Branch), the Employment Appeal Tribunal has ruled that an employee of a Hong Kong based company had to be premitted to enforce those rights in an English Employment Tribunal.
The Claimant was employed by MCS Ltd, a company incorporated and based in Hong Kong. In September 2008, he moved to London on an 'assignment' to a UK based associated company.
He was dismissed in September 2009 and brough claims of unfair dismissal, discrimination on the grounds of race and / or religious belief and unlawful deduction from wages in the London South Employment Tribunal. At Pre-Hearing Review, the Tribunal decided that they had no jurisdiction to hear the claims and dismissed them.
However, on appeal, the EAT disagreed. First, it found that the Claimant's Claims came within the 'grasp' of the legislation on which they were based. The discrimination legislation conferred rights on persons employed 'at an establishment in Great Britain', including persons who do their work 'wholly or partly in Great Britain', which in this case, the Claimant did.
As far as the rights under the Employment Rights Act 1996 go, a tribunal has jurisdiction where an employee is 'working in Great Britain' at the time of his dismissal on something other than a 'casual visit', as per Lawson v Serco Ltd 2006. The Claimant was working in Great Britain at the time of his dismissal as part of MB Ltd's operation.
Nevertheless, Regulation 19 (1) of the Tribunal Regulations states that a tribunal in England and Wales has jurisdiction to deal with proceedings only in particular circumstances, including where a respondent resides or carries on business in England and Wales.
The Employment Tribunal decided that it had no jurisdiction under regulation 19 because the employer did not reside ot carry on business in England and Wales and the EAT agreed that MCS Ltd could not 'in any ordinary sense of the phrase' be said to have been carrying on business in London. However, it considered that it seemed wrong in principle for employees to notionally enjoy protections which they cannot enforce. In order to avoid such a result, the EAT held that in the particular context of Regulation 19, a company can 'carry on business in England and Wales' by seconding an employee to work at an establishment there.
The EAT accepted that this was a 'strained conclusion', but found it was necessary in order to give effect to the rule-maker's intentions.
He was dismissed in September 2009 and brough claims of unfair dismissal, discrimination on the grounds of race and / or religious belief and unlawful deduction from wages in the London South Employment Tribunal. At Pre-Hearing Review, the Tribunal decided that they had no jurisdiction to hear the claims and dismissed them.
However, on appeal, the EAT disagreed. First, it found that the Claimant's Claims came within the 'grasp' of the legislation on which they were based. The discrimination legislation conferred rights on persons employed 'at an establishment in Great Britain', including persons who do their work 'wholly or partly in Great Britain', which in this case, the Claimant did.
As far as the rights under the Employment Rights Act 1996 go, a tribunal has jurisdiction where an employee is 'working in Great Britain' at the time of his dismissal on something other than a 'casual visit', as per Lawson v Serco Ltd 2006. The Claimant was working in Great Britain at the time of his dismissal as part of MB Ltd's operation.
Nevertheless, Regulation 19 (1) of the Tribunal Regulations states that a tribunal in England and Wales has jurisdiction to deal with proceedings only in particular circumstances, including where a respondent resides or carries on business in England and Wales.
The Employment Tribunal decided that it had no jurisdiction under regulation 19 because the employer did not reside ot carry on business in England and Wales and the EAT agreed that MCS Ltd could not 'in any ordinary sense of the phrase' be said to have been carrying on business in London. However, it considered that it seemed wrong in principle for employees to notionally enjoy protections which they cannot enforce. In order to avoid such a result, the EAT held that in the particular context of Regulation 19, a company can 'carry on business in England and Wales' by seconding an employee to work at an establishment there.
The EAT accepted that this was a 'strained conclusion', but found it was necessary in order to give effect to the rule-maker's intentions.
