Ms C Tokody v Cover-More Insurance Services (UK) Ltd and Cover-More Group Ltd: 3325726/2019
| Judgment Date | 31 August 2021 |
| Citation | 3325726/2019 |
| Date | 31 August 2021 |
| Published date | 29 September 2021 |
| Court | Employment Tribunal |
| Subject Matter | Breach of Contract |
Case Number: 3325726/2019
1
EMPLOYMENT TRIBUNALS
COVID-19 Statement on behalf of Sir Keith Lindblom, Senior President of Tribunals
“This has been a remote hearing not objected to by the parties. The form of remote
hearing was by CVP. A face to face hearing was not held because it was not
practicable and no-one requested the same.”
Claimant Respondent
Ms Carole Tokody
v
(1) Cover-More Insurance Services
(UK) Ltd
(2) Cover-More Group Ltd
Heard at: Watford On: 6, 7 and 8 July 2021
Before: Employment Judge Bloch QC
Appearances
For the Claimant: In person
For the Respondent: Ms S. Omeri, counsel
RESERVED JUDGMENT ON PRELIMINARY
ISSUES
The preliminary issues ordered to be decided by the Tribunal on 17 August 2020
are determined as follows:
1. The English Employment Tribunal has jurisdiction over all elements of the
Claimant’s claims;
2. The claimant made protected disclosures, (more fully referred to below) in
relation to Air Canada, Arsenal, Travelex and Innate (but not otherwise) that
may be relevant to a claim of automatic unfair dismissal on grounds that the
reason or principal reason for her dismissal was that she had made one or
more protected disclosures.
Case Number: 3325726/2019
2
REASONS
The preliminary issues
1. On 29 February 2020, Employment Judge Bartlett listed the case for a
preliminary hearing on 17 August 2020, in order to determine:
“Whether any of the claims are outside the jurisdiction in so far as they relate to the USA
and Australia.”
2. At the Preliminary hearing on 17 August 2020, Employment Judge Smail
listed the case for preliminary hearing on 6–8 July 2021 at which the
following two questions would be determined:
2.1 “whether the English Employment Tribunal has jurisdiction over one or more
elements of the Claimant’s claims;
2.2 “if it has jurisdiction over the Claimant’s claim of unfair dismissal, did the
Claimant make any protected disclosures that may be relevant to a claim of
automatic unfair dismissal because the reason or principal reason for her
dismissal was that she had made one or more protected disclosures.”
3. The parties were broadly in agreement that in cases raising the issue of the
international and territorial jurisdiction of the Employment Tribunal of
England & Wales, there are (at least) three key questions
for the Tribunal considering the issue to answer, namely:
3.1 Can the claimant (“C”) bring a claim in England (‘the international
jurisdiction question’)?
3.2 If so, what is the law applicable to such claim/does “British” employment
law apply? (This is how the Respondents (“Rs”) formulate the
question, C confining itself to “which substantive law is applicable to
the agreements and dispute under consideration?)”. While this is
not a question specifically formulated as a preliminary issue, I shall
address it, given its bearing on the third question below.
3.3 Does “British” employment law indicate that the claims fall within the
territorial scope of [in this case] s.103A (and/or s.94) of the
Employment Rights Act 1996 (“ERA”)?
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The facts – the Agreements
4. The Second Respondent (‘R2’) is the parent company of the First
Respondent (‘R1’). It is a company registered in Australia and located in
Sydney, New South Wales, Australia. It is a leading travel insurance and
assistance provider.
1
Oddly, C’s written Submissions cited the questions as they had been originally formulated by EJ Bartlett
and not the subsequent questions formulated by EJ Smail
Case Number: 3325726/2019
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5. R1 is a wholly-owned subsidiary of R2. Its registered office is located in
London, United Kingdom.
6. C was employed from 24 October 2011
2
. She worked latterly as Chief
Executive Officer (‘CEO’) Global – Direct and Fintech on assignment in the
UK, until she was dismissed by reason of a purported redundancy on 14
June 2019.
7. C’s employment was governed by a series of agreements (the “Cover-More
Agreements”) to reflect her relationship with R2 and with the other entities to
whom she was assigned from time to time.
8. The relevant Cover-More Agreements were the following:
8.1 UK Employment Agreement with R1 unsigned but dated 10 July 2017;
8.2 Unsigned UK Assignment Letter dated 8 June 2017 by “Mike Emmett,
Group Chief Executive Officer for and on behalf of Cover-More
Group” (ie R2);
8.3 Australian Employment Agreement (with ASTIS Holdings Pty Limited)
dated 11 July 2011;
8.4 Like documents as in 8.1 And 8.2 in 2016 regarding her assignment
(before the English assignment) to the USA (“US Employment
Agreement” and “US Assignment Letter”, respectively).
9. Whilst the UK Employment Agreement and UK Assignment Letter were both
unsigned, it was accepted by the parties that these agreements governed
C’s employment at the times relevant to the present claims.
10. The UK Employment Agreement was in typical form for an English law
employment agreement with a senior executive. It provided (for example):
10.1 For 6 months’ notice to terminate by either party (cl 2.1);
10.2 For continuity of service with service under the Australian Employment
Agreement (cl 2.3);
10.3 That C was to serve R1 as Chief Executive Officer, Direct and Fintech
(cl 4.1);
10.4 That C was to report directly to Chief Executive Officer (“CEO”) of R2
(cl 4.2); (this was latterly Michael Emmett (based at the Sydney,
Australia office of R2) until about 4 September 2018 after which
Hanno Mijer (also based in Sydney) was appointed CEO of R2);
2
While the Australian Employment Agreement is with ASTIS Holdings Pty Lim ited the parties seem to be
at one in regarding R2 as C’s Australian employer (See eg R’s Opening Note p ara 2)
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