Banker’s sheriff court damages claim over failure of Court of Appeal to refer case to ECJ dismissed

A Singapore-based banker who raised an action for damages in the sheriff court following a refusal by the Court of Appeal in London to refer a question of EU law to the European Court of Justice, after his claim for unfair dismissal in the UK employment tribunal was rejected on the grounds that the tribunal lacked jurisdiction, has had his case dismissed.

 

A sheriff at Edinburgh Sheriff Court dismissed the action as “irrelevant”.

 

Sheriff Kenneth McGowan heard that the pursuer, Fermin Aldabe, a dual Argentine and Italian national, raised a claim for damages against the Advocate General for Scotland, as representing certain emanations of the UK state. 

 

The case came before the sheriff on the pursuer’s motion for summary decree; and the defender’s motion for dismissal.

 

 

The court was told that the pursuer came to the UK in August 2008 as part of a search for work and was offered a job with the Standard Chartered Bank, which has its headquarters in London, in its ‘Group Market Risk’ function in Singapore.

 

His start date was 17 November 2008, but there was some delay in the pursuer taking up his employment as a result of a need to attend training in London.

 

Soon after his arrival in Singapore on 1 December 2008 a dispute arose concerning the terms of employment, with the consequence that the appellant began to write out a resignation letter and the bank’s head of HR in Singapore wrote a letter withdrawing the offer of employment.

 

The pursuer brought proceedings in Singapore for wrongful dismissal, which was successful in part, and the High Court of the Republic of Singapore awarded him notice pay dating from the original start date. 

 

In February 2009, the pursuer brought a claim in the United Kingdom employment tribunal for (i) breach of contract and unlawful deductions; (ii) unfair dismissal due to his assertion of a statutory right, relying on section 104 of the Employment Rights Act 1996; and (iii) holiday pay.

 

 

But a preliminary issue arose as to the jurisdiction of the employment tribunal to hear the claim, one question for decision being whether the pursuer’s and his employment’s connection with the UK was sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with his claim.

 

The employment tribunal dismissed the claim inter alia on the grounds that the tribunal lacked jurisdiction to entertain the claim for unfair dismissal - a decision which was upheld by the Employment Appeal Tribunal (EAT).

 

The pursuer sought leave to appeal to the Court of Appeal, on the basis that the conclusion reached by the tribunal was discriminatory on grounds of nationality, and as part of his submissions he invited the court to make a preliminary reference to the ECJ for a ruling on the discrimination issue.

 

In refusing the application for leave to appeal, the court refused to make a reference, as any issue of discrimination was not relevant because it had not been material to the tribunal’s decision and there was therefore no issue of EU law.

 

Thereafter, the pursuer raised the present action in the sheriff court, arguing that the Court of Appeal was in error in refusing to make the reference; as a result of that alleged error he had been “wrongly deprived” of his right to pursue his claim in the UK employment tribunal against his former employer; and as a result had not obtained the redress which he believed he would have obtained – including an order for re-instatement or re-engagement; that as result he suffered losses; and the UK, being responsible for the failure to refer and hence those losses, should be ordered to pay damages to him.

 

 

Dismissing the action, the sheriff ruled that the pursuer’s case was “irrelevant”.

 

In a written judgment, Sheriff McGowan said: “The question as formulated by the pursuer pre-supposes that the Court of Appeal would have ruled in favour of a person who was a British national and who had been resident in the UK but otherwise whose circumstances were identical to those of the pursuer. In my view, that is not the case.

 

“In relation to the question of nationality, it would have made no difference if the pursuer was British, Italian or any other nationality for that matter. The question of nationality was simply irrelevant to the question before the court…

 

“In my opinion, all of the foregoing is clear from the terms of the judgements referred to in the pursuer’s pleadings and leads to the conclusion that no question of EU law requiring a referral arose at all before the Court of Appeal. On that ground alone, the pursuer’s case is irrelevant.”

 

Even if the sheriff was wrong in concluding that the Court of Appeal was not in error, any infringement of EU law was not “sufficiently serious” for liability to arise for a failure to make a reference.

 

Sheriff McGowan concluded: “The general point is this: the hypothesis on which the pursuer’s claim in this case proceeds is that as the result of the Court of Appeal’s failure to make a reference, the pursuer was deprived of the opportunity of making a successful claim before the employment tribunal. That hypothesis requires him to aver and prove (as a matter of probability), amongst other things, that his claim would have been successful and that the tribunal would have been persuaded to make particular orders and/or awards in his favour. 

 

“It does not do for the pursuer simply to assert that he would have been awarded a particular pay rise; or a particular bonus when these are plainly matters which would have been determined by his employers based, presumably, on a wide range of factors such as the pursuer’s performance. Accordingly, in my view the pursuer’s averments of loss are wholly lacking in specification and not apt to be admitted to probation.”