Labour & European Law Review Weekly Issue 467 28 April 2016
When trying to decide if a tribunal has jurisdiction to hear a case, the law says it has to find a “sufficiently strong connection” with Great Britain. In ESS Support Services LLP v Pabani & Compass Group plc, the Employment Appeal Tribunal (EAT) held that “sufficiently” has to be understood as “sufficient to displace that which would otherwise be the position”.
Mr Pabani was a British citizen who lived in the UK. In 2011, he was offered a job as Finance Director for ESS Support Services LLP, a limited liability partnership based in Kazakhstan. ESS is a wholly owned subsidiary of a Dutch company, Compass Group International BV, which in turn is owned through a chain of companies by Compass Group International plc. Mr Pabani signed a number of agreements with ESS saying, among other things, that the position would be on a rotational basis, with Kazakhstan being his “host country” and the UK his “home country”. Although he returned to the UK from time to time for “rest and recuperation”, he was effectively based in Kazakhstan.
In May 2013 he was asked to leave the office and the next day he was asked to leave Kazakhstan. He returned to the UK and initiated the company’s grievance procedure. However, he was dismissed in September, effective from December 2013. Mr Pabani claimed unfair dismissal on the basis that he had made protected disclosures. ESS argued that he was dismissed because of a breakdown in the relationship between the parties.
At a preliminary hearing, the tribunal found that the various agreements signed by Mr Pabani contradicted each other and that there had been a “contractual disguise”. It held that Mr Pabani was employed by ESS and that there was a sufficiently strong connection with Great Britain for there to be jurisdiction for the tribunal to hear his case in this country. It also held that he did not have a contract with Compass, nor was it necessary to imply one.
ESS appealed against the tribunal’s findings that it had jurisdiction to hear the case. Mr Pabani cross-appealed on the ground that the tribunal was wrong not to find that he was employed by Compass.
The EAT allowed the appeal by ESS, holding that the tribunal fundamentally misconstrued the agreements before it and that there was no basis on which it could have found that there was any sort of contractual disguise. When the documents were read together (as the tribunal should have done) it was clear that Kazakh law applied and therefore it fell within the jurisdiction of Kazakhstan.
In order to decide if the sufficiently strong connection test was met, the EAT held that “sufficiently” has to be understood as “sufficient to displace that which would otherwise be the position”. In this case, the tribunal was wrong to decide that the decisive factor was Mr Pabani’s links with the UK. Instead the decisive factors included the fact that ESS was not a British company; that the parties had agreed that British employment law would not apply to the contract; and that the UK courts would have no jurisdiction.
The EAT dismissed Mr Pabani’s cross-appeal and remitted the case to be heard by a different employment judge.
The “contractual disguise” issue related to the tribunal’s view that Mr Pabani’s original negotiating position was so weak that the contracts which tried to portray the legal position as something it was not, were forced upon him and could therefore be unpicked. After the EAT dismissed that assessment all that was left was a balancing exercise as to what was actually intended, and what actually happened. After doing that the EAT concluded Kazakh law applied. It’s a problem faced by international employees and one which often comes down to a judgment call.