BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable RTF version]
[Help]
FAIR
EMPLOYMENT TRIBUNAL
CASE REF: 67/08 FET
CLAIMANT: William Thomas Campbell
RESPONDENT: MPA Recruitment Ltd
Constitution
of Tribunal:
Chairman: Ms
W A Crooke
Members: Mr
S Pyper
Mr
P McCrossan
DECISION
It
is the unanimous decision of the Tribunal that it does not have
jurisdiction to entertain the claimant’s claim for
discrimination on the grounds of religious belief or political
opinion.
Appearances:
The
claimant appeared in person and represented himself.
The
respondent was represented by Miss Anne Finnegan instructed by J
Blair Employment Law Solicitors.
Sources
of Evidence
1. The claimant gave evidence on his
own behalf. Evidence was given on behalf of the respondent by Nuala
McQuade, Julie Roddy and Desmond O’Brien. The Tribunal also
had before it a witness statement of John McHugh. Mr McHugh was
unable to attend the Tribunal and insofar as the Tribunal took any
account of his statement, it gave it weight only so far as it went to
corroborate the evidence given by Mr O’Brien.
The Tribunal also had an agreed
bundle of documents before it.
The
Claim and the Defence
The
claimant claimed that he had been discriminated against on the
grounds of his religious belief and political opinion. The
respondent contended that the Tribunal had no jurisdiction to
consider the claim of the claimant and in the alternative claimed
that he was not discriminated against.
The
Relevant Law
Article
6 of the Fair Employment and Treatment (Northern Ireland) Order 1998
as amended states “6. – (1)” for the purposes of
this Order, employment is regarded as being employment in Northern
Ireland if the employee –
[(a) Does his work wholly or partly in
Northern Ireland, or
(b) Does his work wholly outside
Northern Ireland and paragraph (1)(A) applies].
(1A) This paragraph applies if –
The
employer has a place of business at an establishment in Northern
Ireland;
The work is for the purposes of the
business carried on at that establishment; and
The employee is ordinarily resident
in Northern Ireland –
At the time when he applied for or
is offered the employment, or
At any time during the course of the
employment.
As the claimant was not able to
successfully negotiate this jurisdictional hurdle, the Tribunal does
not consider that it is necessary to set out any further provisions
of the Fair Employment and Treatment (Northern Ireland) Order 1998 as
these matters simply did not arise as a result.
Change to the Title of the Respondent
The
claimant had initially presented his claim to the tribunal against
MPA Recruitment. However, at the hearing of this matter, he
accepted the contention of the respondent that the correct name of
the respondent was MPA Recruitment Limited. Therefore the Tribunal
amended the respondent’s name in the heading of this case to
read “MPA Recruitment Limited”
Findings
of Fact
The respondent is a Northern Ireland
Limited Company carrying on business as a recruitment agency.
The
respondent company was originally established in the City of Derry
in 1997, and over the years opened other branches in Northern
Ireland.
The
respondent company had a client in Letterkenny, County Donegal known
as Pacificare. Pacificare made it clear that it would do business
with the respondent and accordingly the respondent company
established a company in the Republic of Ireland which was also
named MPA Recruitment Limited. This was a separate business to the
Northern Ireland company.
The
Republic of Ireland Company became registered for VAT in the
Republic of Ireland with effect from 1 October 2007 and at that time
Julie Roddy of the respondent company applied for a licence from the
Department of Enterprise Trade and Employment in the Republic of
Ireland. This licence was actually issued by the Department on 19
June 2008, but the company was trading and paying VAT and other
Government taxes in the Republic of Ireland pending the issue of
that licence.
From
1 December 2007 the Republic of Ireland Company opened an office in
Letterkenny. However most of the administration of the Republic of
Ireland company including the maintenance company was carried out in
the City of Derry office of the Northern Ireland company.
As
part of his case, the claimant contended that the Republic of
Ireland company was trading illegally, but he did not support his
contention with any solid evidence which the Tribunal could
consider.
On
the claimant’s case he said that he saw a job advertisement on
the FAS website and contended that some of the documents in his
bundle were copies of the “MPA advertisement for my job”.
He contended that he had responded to this advertisement by making
contact with MPA in the City of Derry. The Tribunal does not accept
the claimant’s contention as the advertisement referred to a
post with a start date on 28 January 2008, and the claimant started
work at Pacificare on 10 December 2007. His employment was
terminated with Pacificare on 15 January 2008. The respondent
company’s Miss McQuade gave evidence that it was Pacificare
who contacted her sending her the CV of the claimant as he had been
in touch directly with them seeking employment. As a result of
receiving the claimant’s CV, Miss McQuade contacted the
claimant and invited him for interview on 4 December 2007. On the
balance of probabilities the tribunal accepts Miss McQuade’s
version of events. Plainly the claimant had not been recruited with
respect to the advertisement which appeared in his bundle, which was
dated after his employment.
The
claimant did not have a written contract of employment. Miss
McQuade gave evidence to the Tribunal. She had explained to the
claimant that he would be employed on the following terms:
He would be engaged as a temporary
worker;
He
would be assigned to Pacificare in Letterkenny;
That
Pacificare would be entitled to terminate his contract at any
time;
That
he would be paid in Euros;
That
he would need to set up a bank account in the Republic of Ireland
into which his wages could be paid although in the interim he
could be paid by Euro cheque and;
Between assignments there would be
no contract of employment between himself and MPA Recruitment Ltd.
As
the claimant only took issue with points 3 and 6 of this list of
terms, saying for example that he was entitled to a one year contract
with Pacificare the Tribunal considers it more likely than not on the
balance of probabilities that this list of terms did in fact form the
basis of the claimant’s contract of employment with Pacificare.
The
respondent accepted that its terms of engagement document for use in
the Republic of Ireland was not in existence at the time of the
claimant’s interview, but contended that this document was the
basis of the oral contract made between the claimant and MPA. In
reaching its decision, the Tribunal has attached almost no weight to
the contention that the terms of engagement in the Republic of
Ireland, which were not in place at the time the claimant was
recruited, constituted evidence of his terms and conditions of
employment. However, it was clear that the claimant was going to be
working exclusively in the Republic of Ireland for Pacificare and
was to be paid in Euros. Furthermore all statutory deductions such
as tax PRSI (Pay Related Social Insurance) was paid to the Republic
of Ireland Government. The claimant accepted that this was the
case.
The
claimant was employed to work as a technical analysis for Pacificare
giving telephone support on issues affecting the IT systems of
Pacificare.
There
was uncontraverted evidence before the Tribunal that Pacificare was
invoiced in respect of the claimant’s services in Euros.
Payment for the claimant’s services was received by the
Republic of Ireland MPA Recruitment Limited in Euros into their bank
account held at 8 Market Square, Buncrana, County Donegal.
There
was no evidence before the Tribunal that the claimant was anything
other than a worker supplied by the respondent’s recruitment
company to Pacificare.
There
was no evidence before the Tribunal that the respondent company in
any way benefited from the claimant’s work for Pacificare.
Conclusion
on the Issue of Jurisdiction
It
is the decision of the Tribunal that the claimant carried out his
work for Pacificare wholly outside Northern Ireland and the
exceptions set out in sub-paragraph (1A) of Article 6 did not apply
to his work. The tribunal finds that the claimant was engaged under
a contract for services by the Republic of Ireland company and
during his assignment with Pacificare he would be paid directly by
the Republic of Ireland company after requisite statutory deduction
had been made. Although the claimant was not asked to sign the
terms of engagement document in respect of the Republic of Ireland
as it did not at that time exist, neither was he asked to sign the
terms of engagement document for Northern Ireland, and the Tribunal
accepts that this supports the respondent’s case that the
temporary work was to be carried out in the Republic of Ireland.
The
Tribunal also considers that plainly the respondent was employed as
a technical analyst on Pacificare business. There was no suggestion
that he was doing any work for the purposes of MPA Recruitment
Limited business on Pacificare premises. Furthermore, it was not
the decision of MPA Recruitment Limited to terminate the claimant’s
contract of employment with Pacificare. That decision was taken by
Pacificare who said that they no longer required the claimant.
As tax and PRSI were deducted from
the claimant’s remuneration, it goes without saying that the
claimant was not paying any deductions within Northern Ireland.
There
was no evidence provided by the claimant to back up his contention
that his work for Pacificare was for the purposes of the business
carried on by MPA Recruitment Limited. Furthermore, as the Republic
of Ireland MPA Recruitment Limited company only has a payroll
function being administered from the City of Derry office, the
Tribunal is unable to find sufficient evidence that MPA Recruitment
Limited (Republic of Ireland) had a place of business at an
establishment in Northern Ireland.
The
claimant contended that he had a contract of employment with the
Northern Ireland MPA Recruitment Limited. However, the balance of
the evidence suggested that in so far as a contract of employment
existed at all it would have existed with MPA Recruitment Limited in
the Republic of Ireland, as it was that company that received
remuneration for the placement of the claimant with Pacificare.
For
all of the above reasons, the Tribunal does not accept that it has
jurisdiction to deal with the claimant’s claim and accordingly
the alleged complaints of discrimination on the grounds of religious
belief and/or political opinion do not fall to be considered.
Chairman:
Date
and place of hearing: 23, 24, 27 March 2009, at Belfast
Date
decision recorded in register and issued to parties:
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/nie/cases/NIFET/2009/67_08FET.html
