Appeal No.	 EAT/31/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 April 1999

Before
HIS HONOUR JUDGE H J BYRT QC
MRS T A MARSLAND
MRS R A VICKERS

Asahi Diamond Industrial Co Ltd	APPELLANT

Mr F Barrier	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR H HARTE
Solicitor
Slee Blackwell
10 Cross Street
Barnstaple
Devon EX31 1BA	

	JUDGE JOHN BYRT:	This is a Preliminary Hearing in an Appeal against a decision promulgated on 9th December 1998 of an Employment Tribunal sitting in Brighton when they held on a preliminary issue that the Claimant, Mr Barrier was entitled to bring his claims because at the time he was employed by the Appellants under a contract to work in England.

	Quite shortly, the facts are that in September 1993, Mr Barrier began working as a Senior Executive in the Appellants’ sister company, Asahi Diamond Industrial Europe SA, which for convenience is called “the French Company”.  In his contract it was provided that he should work full time at Chartres and there was no mobility clause included.  That contract was terminated in July 1998, allegedly for misconduct.  The Appellant company, Asahi Diamond Industrial UK Ltd, which I refer to as “the English Company”, had its headquarters at Crawley and Mr Barrier in his early days used to come over from time to time to carry out audits there.  

	In September 1995, he was offered a position with the English Company as its finance manager.  He accepted and thereafter, they paid him a salary per month, provided him with house rental, a car and travelling expenses between London and Chartres. Under that arrangement, he worked for 2 days in UK and 3 days in Chartres and that continued to be the case until July 1998.

	The issue as delineated by the Tribunal was whether he was employed under a separate English contract with the English company, or whether he was employed by the French company alone but seconded to the English company.  The Tribunal said that its jurisdiction to hear Mr Barrier’s claims was dependent upon which of those two matters was the true position, because that would establish the Tribunal’s jurisdiction.

	A Notice of Appeal has been entered in which the Appellants say that the Tribunal came to a perverse finding when it attempted to balance the arguments for and against a contract in England.  We take the view that during that part of the Tribunal Reasons the Tribunal clearly went into the matter with great care and applied the right law and came to a conclusion on facts which would be difficult for us to say was wholly unreasonable.  It is our view that such a position is unsustainable.

	There is an additional ground set out in the Notice of Appeal, namely that the Tribunal directed itself to the wrong test when considering the question of jurisdiction.  It seemed to accept that the test was whether Mr Barrier was employed under a separate English contract, whereas in actual fact, the test of the English court’s jurisdiction is set out in Section 196(2) of the Employment Rights Act of 1996.  That says:

“The provision to which this Section applies do not apply to employment where under the Employee’s Contract of Employment he ordinarily works outside Great Britain.”

	Sub-section 2 applies to a number of parts of the Employment Rights Act which includes those sections which would cover the Respondent’s claims in his IT.1.  Accordingly, Mr Harte argues that the Tribunal set itself up the wrong test to decide whether it had jurisdiction or not.  Instead of wondering whether there was a separate contract for employment in England, they should have been asking themselves where Mr Barrier ordinarily worked.  He says he ordinarily works in France where, according to the arrangements that he had, he worked 3 days a week against only 2 days in England.  We think it is arguable therefore, to say that he ordinarily works outside Great Britain, but that would be a matter for a Full Hearing of this Tribunal to consider.  On that one point alone, which we think is para 2.5 of the Notice of Appeal, we give leave for this to go forward to a Full Hearing.