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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cosmosair Plc v. Baldiston [2001] UKEAT 0539_01_0506 (5 June 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/0539_01_0506.html Cite as: [2001] UKEAT 539_1_506, [2001] UKEAT 0539_01_0506

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APPEARANCES

 

For the Appellant	MR E SUTER (Representative) Industrial Relations Workshop 3 Park Drive Weybridge Park Surrey KT13 8UU


 


JUDGE PETER CLARK

1. The Applicant before the Ashford Employment Tribunal, Miss Baldiston, was employed by the Respondent holiday company as its Area Manager on the Greek Island of Crete, from 15 March 1999 until her summary dismissal on 6 July 2000.
2. On 26 September 2000 she presented a complaint of unfair dismissal and wrongful dismissal to the Employment Tribunal.
3. In their original Notice of Appearance dated 27 October 2000, the Respondent raised the following lines of defence:

1. That the Applicant was engaged in Crete and worked, was paid and was taxed there.

2. That by a written agreement dated 18 August 2000, and entered into between the parties, it was agreed that the employment would be terminated by mutual agreement. Under the terms of that agreement the Applicant was paid the sum of 1.2 million drachmas.

3. She was fairly dismissed by reason of her conduct. Alternatively she contributed to her dismissal by her own conduct.

4. She is precluded from pursuing her claim of wrongful dismissal by virtue of the 18 August agreement. Alternatively she was dismissed for a good cause.

4. Apparently the case was first listed for a Preliminary Hearing to determine whether the Applicant ordinarily worked abroad. However, with the repeal of Section 196 of the Employment Rights Act 1996, that question is now immaterial.
5. Secondly, there was a preliminary issue as to whether the 18 August agreement constituted a compromise agreement within the meaning of Section 203 of the Act. The Respondent now concedes that it is not.
6. In these circumstances a Chairman, Mr Zuke, directed by letters dated 14 and 22 March 2001, that the Preliminary Hearing, then fixed for 6 April, be vacated and the case listed for a full merits hearing over 2 days. Against that direction, the Respondent now appeals.
7. It is clear to us, from the submissions now made on behalf of the Respondent by Mr Suter, that the intention was to argue that the Employment Tribunal had no jurisdiction to consider this complaint of unfair dismissal because the contract of employment was made and formed solely in Greece.
8. Accordingly it is said that it is to the Greek court that this complaint should be brought. Additionally, Mr Suter submits that the agreement of 18 August is justiciable only in the Greek courts.
9. In support of those summations, Mr Suter submitted not one but two skeleton arguments and this morning produced a substantial bundle of law, particularly directed to the provisions of article 5(1) of the Brussels Convention, which has been incorporated into UK law.
10. It seems to us that that case was never put sufficiently clearly prior to the Tribunal Chairman giving his directions in March 2001. Although questions of jurisdiction can be taken at any time, it seems to us entirely inappropriate to permit the Respondent to argue these points before us in this appeal, against the Chairman's Interlocutory order, which merely cancels a Preliminary Hearing and directs that there should be a full merits hearing.
11. It seems to us that the proper course for us to take is to dismiss this appeal, making it clear that we do so on the basis that the Chairman's letters do not purport to rule on the jurisdiction point, which the Respondent in fact intends to take.
12. It seems to us the proper course for the Respondent is now to lodge with the Employment Tribunal a draft amended Notice of Appearance, which clearly sets out the nature of the point which it wishes to take. It will then be a matter for the Employment Tribunal Chairman to decide:

a. Whether to grant permission to amend on those terms.

and

b. To consider any further applications on behalf of the Respondent for a preliminary issue hearing to take place to decide the jurisdiction point now clearly articulated.

13. With those observations, we dismiss this appeal