FULL RECOMMENDATION
SECTION 77; EMPLOYMENT EQUALITY ACT; 1998 PARTIES : A RETAIL COMPANY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY ROSEMARY CONNOLLY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr Somers |
1. Alleged unfair dismissal under Employment Equality Act 1998.
BACKGROUND:
2. The Complainant was employed by the Company from the 13th of July, 1992 until the 28th of July, 2000 when he was dismissed. He claims that he was discriminated against on the grounds of sexual orientation and gender. He referred a complaint to the Labour Court in accordance with Section 77 (2) of the Employment Equality Act, 1998. A Labour Court hearing took place on the 15th of June, 2001.
DETERMINATION:
The worker has referred a complaint to the Court under Section 77(2) of the Employment Equality Act, 1998 alleging that his dismissal from employment constituted discrimination on grounds of sexual orientation and gender.
He alleges that he has been discriminated against on the grounds of sexual orientation "since, in or about 1997" when he was employed in the Enniskillen Branch of the respondent Company. He alleges that he was discriminated against on the gender grounds in relation to "the appointment process of June, 2000" whereby a female employee was appointed to the position of the respondent's Loss Prevention Office in Ireland.
The respondent raised a preliminary objection to the claim on the grounds that the worker was never an employee under the jurisdiction of Irish legislation. If this point is decided in the respondent's favour, the substantive claim could not proceed. The Court has decided, in the interest of the parties, to issue a determination on this preliminary issue first.
The facts of the case, in relation to the jurisdiction issue, are as follows:-
- The claimant was employed by the Company in Northern Ireland on 13th July, 1992.
- In October, 1998, he was appointed to the position of Loss Prevention Officer.
- The Loss Prevention Officer position covered stores in the island of Ireland with the majority of his time being spent in Dublin, with locations at Blanchardstown, Tallaght, Henry Street, Mary Street, Baggot Street, Ilac Centre, and Grafton Street. In his submission to the Court he states"I was originally employed in Loss Prevention to cover the South of Ireland and was told I could operate this from the North."
- His office was based in Bangor.
- He commenced and finalised each working week in Northern Ireland. All office work and company meetings were held in Northern Ireland. He made his reports in Northern Ireland. His supervisor was based in Northern Ireland.
- The Company provided him with temporary accommodation with his permanent residence being based in Northern Ireland.
- When working in Dublin he was paid mileage allowances and expenses.
- In line with all other employees based in Northern Ireland, he was paid in sterling, and paid his tax and social security contributions in Northern Ireland.
- He was made redundant from 28th July, 2000.
- The worker lodged a claim before the Industrial Tribunal in Northern Ireland on 31st July, 2000, and the Director of Equality Investigations (date unknown) and the Labour Court on 5th October, 2000.
The respondent states, on the basis of the facts outlined above, that the Labour Court does not have jurisdiction to hear this case.
This case raises two points for the Court to consider:
- Whether the Court has jurisdiction to hear the matter,
- Whether or not the applicable law of Northern Ireland or the law of Ireland is the appropriate law in this case.
If the Court finds that it does have jurisdiction, then the question of which law is the applicable law will obviously arise.
The Court has considered the provisions of the Jurisdiction and the Enforcement of Judgements of 1998, which consolidated the various European conventions on the jurisdiction of Courts and Enforcement of Judgements entered into since 1968. In particular, the Court has considered Article 5 (1) of the Brussels Convention of the 27th September, 1968 and Article 5 (1) of the Lugano Convention of the 16th September, 1988. The relevant section of both of these articles is identical and reads as follows -a person domiciled in a Contracting State may, in another Contracting State, be sued:
"In matters relating to a contract, in the courts for the place of performance of the obligation in question: in matters relating to individual contracts of employment, this place is that where the employee habitually carries out his work."
The first question is, therefore, where does the employee habitually carry out his work. The Court must look at the totality of the evidence in deciding whether this jurisdiction is the place where the employee habitually works.
The Court has been referred to two cases of the ECJ - Mulox IBC v Geels ECJ C-125/92 (The Mulox Case) and Rutten v Cross Medical Case C-383/95 (The Rutten Case).
The Mulox Case
In the opinion of Advocate General Jacobs in the Mulox case delivered on 26th May, 1993, he refers to Article 5 (1) of the Brussels Convention. Paragraph 33 of the Advocate General Jacobs' opinion states:
"Where a person employed as a commercial representative has an office in one Contracting State, which he uses as a base for his operations, and from time to time travels from that base to other Contracting States for the purposes of visiting clients, there must be a strong presumption that his principal place of employment is located at the place where he has his office, especially if, as in the present case, he also resides at that place. It is there that he receives instructions from his employer, it is from there that he communicates with his clients by post, telephone, telefax, etc., from there that he plans his business trips to other Contracting States and to that place that he returns after each trip. Even if he spends more than half of the year travelling in other countries and does not in fact visit a single client in the country in which he has his office, it seems to me very difficult to rebut the presumption that his principal place of employment is located at the place where he has his centre of operations."
The European Court of Justice at paragraph 25 of its judgement, delivered on 13th July, 1993, follows this line of reasoning in stating:
"In order to determine the place of performance, which is a matter for the national court, it is necessary to take account of the fact that, in this case, the work entrusted to the employee was carried out from an office in a Contracting State, where the employee has established his residence, from which he performed his work and to which he returned after each business trip. Furthermore, it is open to the national court to take account of the fact that, when the dispute before it arose, the employee was carrying out his work solely in the territory of that Contracting State. In the absence of other determining factors, that place must be deemed, for the purpose of Article 5 (1) of the Convention, to be that place of performance of the obligation on which a claim relating to a contract of employment is based."
and in paragraph 23 the European Court of Justice says:
"it follows that Article 5 (1) of the Convention cannot be interpreted as conferring concurrent jurisdiction on the courts of each Contracting State in whose territory the employee performs part of his work."
The Rutten Case
In the Rutten case Advocate General Jacobs in his opinion delivered on 24th October, 1996, states at paragraph 34:
"I remain of the view, which I expressed in my Opinion in Mulox that the location and use made of the employee's office cannot be overlooked. In that case I stated that, even if the employee spent more than half of the year travelling in other countries and did not in fact visit a single client in the country in which he had his office, it seemed to me very difficult to rebut the presumption that his principal place of employment was located at the place where he had his centre of operations. I do not consider that that proportion has been made less cogent by the new wording of Article 5 (1). If an employee who travels to several different countries prepares and plans his work from his office and returns there after every trip, it is artificial to regard him as "habitually" or "principally" carrying out his work in any country other than that where he has his office, the hub of his working activities".
Advocate General Jacobs concludes at paragraph 40 as follows:
"...... the place where or from which the employee principally discharges his obligations towards his employer. It is for the national courts to determine that place in the light of all the relevant facts, which include in particular the fact that the employee spends most of his working time in one of those States where he resides and maintains an office from which he prepares or administers his work outside that State and to which he returns after every trip which he makes in connection with his work".
In its full judgement, the European Court of Justice states at paragraph 25:
"When identifying that place(the place where the employee habitually carries out his work)in the particular case, which is a matter for the national courts in the light of the facts before it, that fact that the employee carried out almost two thirds of his work in one Contracting State - the remainder of his work being performed in several other States - and that he has an office in that Contracting State where he organized his work for his employer and to which he returned after each business trip abroad, as was the case in the main proceedings, is relevant".
and in the conclusion the Court states:
"...... where, in the performance of a contract of employment, an employee carries out his work in several Contracting States, the place where he habitually carries out his work, within the meaning of that provision, is the place where he has established the effective centre of his working activities. When identifying that place, it is necessary to take into account the fact that the employee spends most of his working time in one of the Contracting States in which he has an office where he organises his activities for his employer and to which he returns after each business trip abroad".
The Court has been furnished with the diary of the claimant's working activities for the period 10th January, 2000 to 23rd July, 2000. While it has not been possible to accurately make out all of the entries, the Court is satisfied that he spent approximately 60% of his working time at various locations in this jurisdiction. However, the judgements of the ECJ show that special emphasis must be given to the office from which he conducts his business and to which he returns at the end of each business trip. Furthermore, the ECJ has also indicated that the employee's place of residence should be taken into account. If the employee, on behalf of his employers spent most of his time abroad in different Contracting States and returned to his office at the end of each trip, this Court would have no difficulty in finding that the place where he habitually carried out his work was Northern Ireland. Therefore, does the fact that the employee spends approximately 60% of his working time in one other State confer jurisdiction on that State.
Conclusion
The Court, having carefully looked at all the available evidence, has decided that in this particular case, the claimant has not adduced sufficient evidence to show that the place from which he habitually carried out his work was this State. The Court is aided in this conclusion by the following facts:
- He regarded his office and his reporting managers as being based in Northern Ireland.
- He carried out his administrative functions in Northern Ireland.
- He has brought an unfair dismissals claim in Northern Ireland.
The fact that he spent the majority of his working time in this state during the last 18 months of his employment with the Company is not sufficient in this Court's view to allow him to bring proceedings in this State on the basis that this is where he habitually carried out his work.
Having found that it has no jurisdiction to hear this case, the Court does not have to consider what the applicable law in relation to this matter might be.
Determination
The Court has no jurisdiction to hear this case. The claim is, therefore, dismissed.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th September, 2001______________________
GB/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.