Mrs A Beldica v The British Council: 2202073/2021
| Jurisdiction | England & Wales |
| Judgment Date | 07 January 2023 |
| Date | 07 January 2023 |
| Published date | 23 January 2023 |
| Court | Employment Tribunal |
| Citation | 2202073/2021 |
| Subject Matter | Maternity and Pregnancy Rights |
Case Number 2202073/2021
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EMPLOYMENT TRIBUNALS
Claimant Respondent
Mrs ANA-MARIA BELDICA
v
THE BRITISH COUNCIL
Heard at: London Central ET (by video)
On: 7-8 December 2022, and in Chambers on 9 December 2022
Before: Employment Judge P Klimov (sitting alone)
Representation:
For the Claimant: Ms A. Dannreuther, counsel
For Respondent: Mr Z. Sammour, counsel
Reserved Judgment
The Tribunal has territorial jurisdiction to consider the Claimant’s claims.
Reasons
Background and issues
1. This was an open preliminary hearing ordered by Employment Judge Lewis
on 23 September 2021 in a claim by Ms Ana-Maria Beldica (“The Claimant”)
brought originally against three respondents, namely The British Council (“The
Respondent”), The Foreign, Commonwealth and Development Office (“The
2nd Respondent”), and The British Embassy in the United Arab Emirates
(“The 3rd Respondent”).
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2. The hearing was to consider the following issues:
a. Whether the employment tribunal has territorial jurisdiction to hear all
or any of the claims made against the Respondents.
b. Whether it is possible to decide as a preliminary issue if the claims
against the 2nd and/or 3rd Respondent should be struck out on
grounds that they were not the Claimant's employer and took no other
actions for which they could be held liable.
c. If the judge considers that it is possible to decide this as a preliminary
issue, whether the claims should therefore be struck out as having no
reasonable prospect of success or alternatively a deposit ordered on
the basis that they have little reasonable prospect of success.
3. Before the hearing the Claimant had withdrawn her complaints against the 2nd
Respondent and the 3rd Respondent. On 14 July 2022, these were dismissed
upon withdrawal. Accordingly, the second issue fell away.
4. With respect to the third issue, the Respondent still maintained the strike
out/deposit order application. However, since the application would only be of
relevance if it were determined that the Tribunal did have territorial jurisdiction
to consider the Claimant’s claims, at the start of the hearing I agreed with the
parties that the application would only be considered (time permitting) if the
first issue had been determined in the Claimant’s favour at the hearing.
5. There was also a pending Claimant’s application to amend her claim, which
was resisted by the Respondent. The application to amend would fall to be
decided before considering the Respondent’s strike out/deposit order
application.
6. At the end of the hearing, I decided to reserve my judgment on the first issue.
Accordingly, the application to amend and strike out/despot order applications
will need to be considered at a separate hearing to be listed by the Tribunal.
7. Ms Dannreuther appeared for the Claimant pro bono and Mr Sammour for the
Respondent. I am grateful to both Counsel for their helpful submissions and
other assistance to the Tribunal.
8. There were three witnesses: the Claimant, and Ms A Waweru (Regional HR
Operations Manager for Middle East and North Africa) and Mr J Etten (former
HR Director Global Network) for the Respondent. All witnesses gave sworn
evidence and were cross-examined. The claimant gave her evidence from
Dubai. On the eve of the hearing, the Tribunal received confirmation from the
FCDO that in this specific case there were no objections to oral evidence
being taken from witnesses located in Dubai, the UAE.
9. I was referred to various documents in two bundles of documents of 553 and
196 pages, respectively, which the parties introduced in evidence. These
included a statement (with attachments) submitted on behalf of the Claimant
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by Mr Abdulla Hassan Ahmed Bamadhaf of Bamadhaf Associates, a local
lawyer in Dubai, and a statement (with attachments) submitted on behalf of
the Respondent by Ms Rebecca Ford, of Clyde & Co LLP, an English solicitor
based in Dubai.
10. I was referred to various authorities in the joint bundle of authorities prepared
by the parties. The full list of authorities provided by the parties is in the
annex to this judgment.
11. Both Counsel prepared written opening submissions. Ms Dannreuther
presented written closing submissions (which included one additional
document, which I accepted in evidence), which she supplemented by oral
submissions. Mr Sammour gave his closing submissions orally.
12. At the end of the closing submissions, on the second day of the hearing, I
raised with Counsel the issue of the possible application of the Human Rights
Act 1998 (“HRA”) and the European Convention on Human Rights (“ECHR”)
on the issues in the case and requested them to provide written submissions.
The submissions were provided the following morning together with additional
authorities, for which I am grateful.
13. I considered the parties’ submissions on the third day (in Chambers).
Unfortunately, I was not able to complete my deliberations on that date,
largely due to the extent of the Claimant’s submission on the HRA/ECHR
issue. Due to other work commitments, I was unable to return to this matter
until some days later.
Findings of Fact
14. I confine my findings of fact to the matters which I consider relevant for the
disposal of the territorial jurisdiction issue.
15. The Claimant was employed by the Respondent between 20 March 2016 and
31 December 2020 as an HR Business Partner for the Middle East and North
Africa (“MENA”) region. She was responsible for providing HR support to the
Respondent’s operations in Jordan, Lebanon, the Occupied Palestinian
Territories, Syria, Yemen and Iraq (“the LEVANT Cluster”).
16. The Claimant is a Romanian national. She moved to Dubai, the UAE with her
previous employer in 2012, and has ever since lived and worked exclusively
in Dubai. Her immediate family is in Dubai. Her four children were born in the
UAE. She is settled in the UAE.
17. The Claimant was recruited by the Respondent in Dubai. She was interviewed
for the role by the Respondent’s local employees. The decision to recruit the
Claimant was made by the Respondent’s management staff in Dubai.
18. Her contract of employment contained the following key terms (my
emphasis):
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