Thread: Suing a Recruitment Agency based in Scotland in an English Court.

Hi all,

I am based in England. In 2005 I was applying for work as an IT contractor. I applied for an IT contract based in Holland where I would be working for 6 months. On 22nd July 2005, I signed a contract. I received an electronic version of the contract on the dat that contained the recruitment consultant's signature. I was due to start the work in Holland on 1st August 2005. In preparation for this trip, I purchased a laptop and a flight ticket. A couple of days before I was due to start, the recruitment agency called to inform me that there was no work after all. I was not given a reason and they just made excuses. The contract stipulated that there was ten day's notice period either side.

In March, I after reviewing the situation I decided to start a small claim. I contacted my local county court. I was informed that I can sue a company in Scotland, but I will need to put the clause at the end of my claim. I am claiming for breach of contract, which includes costs for the flight ticket, laptop and 10 days work at the daily rate plus interest.

I submitted the claim which included the clause:
"'I state that the High Court of England and Wales has power under the Civil Jurisdiction and Judgments Act 1982 to hear this claim and that no proceedings are pending between the parties in Scotland, Northern Ireland or another Convention territory of any contracting state as defined by section 1(3) of the Act."

It was served on the recruitment agency. Their response was to threaten me by text. When it was clear that I was serious, they contacted an english firm of solicitors, who is now disputing the claim on the grounds of jurisdiction because:

1) The company is based in Scotland
2) The work was to take place in Holland.

The hearing is on 26th July 2010. I should also mention their is a clause in the contract which roughly states "this is a "Contract for Services" and is governed by Scottish Law.

Their solicitors also stated that the will also apply to recover legal costs for them having to contest jurisdiction.

Having just read other threads I have just realised that I can only apply for a small claim in Scotland backdating 5 years. The hearing is on 26th July. Should I lose then I would have run out of time to submit a claim in Scottish courts.

I am stressed out not sure where I stand and what to do. I would be grateful for any advice.

Thanks

The complication is the contract for services bit. There is a plan B below, but dealing with your problem as stated (ie a contract for services), the best I have been able to find is this from Commercial jurisdiction - references are to the Civil Jurisdiction and Judgements Act 1982
"In actions based on contract, including breach of contract, there is jurisdiction in the court for the place of performance of the obligation in question. Article 5(1) now provides that in the case of sale of goods, this is the place where, under the contract, the goods were delivered or should have been delivered; in the case of the provision of services, it is the place where, under the contract, the services were provided or should have been provided (this was probably implicit before). If the obligation being sued on is simply the obligation to make payment, it may be difficult to show that this had to be made at any particular place; Scots law (like English and Irish) generally provides that payment is to be made at the creditor's place of business, but this may not be obvious (see for example Universal Steels v Skanska Construction, 31 October 2003) and if the proper law of the contract is not Scots the obligation may be to make payment at the debtor's place of business (see this Pace Law School commentary for a European survey)."
I have highligted two parts (both bold, second one underlined too). This could suggest that you should sue them in Holland, but I dont suppose either of you want that, and besides the contract is between two UK entities (you and the agency). The second part seems more applicable - essentially this is about payment, and the problem seems to be that Scots law (and English) would seem to be on your side in this one as you are the creditor. In any event, they would have paid you at your bank (presumably an English one?)
Alternatively you migth try to get the court to set aside the contract of services and accept that it was in fact a contract of employment. You arguably have a good chance of doing this under protection for Agency Workers. Have a a look here Using employment agencies : Directgov - Employment and in particular the pdf that you can download via the link at the bottom - guide to agency workers' rights. Its very usuful as a starting point.
If you can do that thenThe Civil Jurisdiction and Judgements Act 1982 is quite clear - see schedule 4, section 10 which concerns disputes about employment contracts (see http://www.opsi.gov.uk/RevisedStatut...027_en_18#sch7) .
10(1)In matters relating to individual contracts of employment, jurisdiction shall be determined by this rule, without prejudice to rule 3(e).(2)An employer may be sued—
(a)in the courts of the part of the United Kingdom in which he is domiciled; or
(b)in the courts of the part of the United Kingdom where the employee habitually carries out his work or in the courts of that part where he last did so; or
(c)if the employee does not or did not habitually carry out his work in any one place, in the courts of the part of the United Kingdom where the business which engaged the employee is or was situated.
(3)An employer may bring proceedings only in the courts of the part of the United Kingdom in which the employee is domiciled.
(4)The provisions of this rule shall not affect the right to bring a counter-claim in the court in which, in accordance with this rule, the original claim is pending.
(5)The provisions of this rule may be departed from only by an agreement on jurisdiction—
(a)which is entered into after the dispute has arisen; or
(b)which allows the employee to bring proceedings in courts other than those indicated in this rule.
Hope that helps
Just one last thing - you might not get 10 working days as they gave notice two days before the contract was due to start.
SFU

Originally Posted by seriously fed up

The complication is the contract for services bit. There is a plan B below, but dealing with your problem as stated (ie a contract for services), the best I have been able to find is this from Commercial jurisdiction - references are to the Civil Jurisdiction and Judgements Act 1982
"In actions based on contract, including breach of contract, there is jurisdiction in the court for the place of performance of the obligation in question. Article 5(1) now provides that in the case of sale of goods, this is the place where, under the contract, the goods were delivered or should have been delivered; in the case of the provision of services, it is the place where, under the contract, the services were provided or should have been provided (this was probably implicit before). If the obligation being sued on is simply the obligation to make payment, it may be difficult to show that this had to be made at any particular place; Scots law (like English and Irish) generally provides that payment is to be made at the creditor's place of business, but this may not be obvious (see for example Universal Steels v Skanska Construction, 31 October 2003) and if the proper law of the contract is not Scots the obligation may be to make payment at the debtor's place of business (see this Pace Law School commentary for a European survey)."
I have highligted two parts (both bold, second one underlined too). This could suggest that you should sue them in Holland, but I dont suppose either of you want that, and besides the contract is between two UK entities (you and the agency). The second part seems more applicable - essentially this is about payment, and the problem seems to be that Scots law (and English) would seem to be on your side in this one as you are the creditor. In any event, they would have paid you at your bank (presumably an English one?)
Alternatively you migth try to get the court to set aside the contract of services and accept that it was in fact a contract of employment. You arguably have a good chance of doing this under protection for Agency Workers. Have a a look here Using employment agencies : Directgov - Employment and in particular the pdf that you can download via the link at the bottom - guide to agency workers' rights. Its very usuful as a starting point.
If you can do that thenThe Civil Jurisdiction and Judgements Act 1982 is quite clear - see schedule 4, section 10 which concerns disputes about employment contracts (see http://www.opsi.gov.uk/RevisedStatut...027_en_18#sch7) .
10(1)In matters relating to individual contracts of employment, jurisdiction shall be determined by this rule, without prejudice to rule 3(e).(2)An employer may be sued—
(a)in the courts of the part of the United Kingdom in which he is domiciled; or
(b)in the courts of the part of the United Kingdom where the employee habitually carries out his work or in the courts of that part where he last did so; or
(c)if the employee does not or did not habitually carry out his work in any one place, in the courts of the part of the United Kingdom where the business which engaged the employee is or was situated.
(3)An employer may bring proceedings only in the courts of the part of the United Kingdom in which the employee is domiciled.
(4)The provisions of this rule shall not affect the right to bring a counter-claim in the court in which, in accordance with this rule, the original claim is pending.
(5)The provisions of this rule may be departed from only by an agreement on jurisdiction—
(a)which is entered into after the dispute has arisen; or
(b)which allows the employee to bring proceedings in courts other than those indicated in this rule.
Hope that helps
Just one last thing - you might not get 10 working days as they gave notice two days before the contract was due to start.
SFU

SFU Thankyou very much for your detailed and comprehensive response.

A few questions.

1) At the hearing what is the procedure - at what point will I get to speak.
2) Assuming that the second part is applicable on what grounds could I argue that the contract is about payment.
3) How do I apply to have the the 'contract for services' set aside in favour of 'contract of employment. Do I do this at the hearing or do I put this in writing.
4) The actual clause regarding 10 days reads: "Either party may terminate this Agreement by giving 2 weeks’ written notice." If I was pursue this as a contract of employment, does this still mean I might not be eligible to claim for this?

1. dont know - I am in Scotland. Uusally when I am trying to help on this kind of thing, its the other way round (people up here getting sued in England). I would imagine though that the pursuer - the other side - will go in first, since if they cant convince the court that they have a case on the basis of their own argument/ evidence, there isnt much point in hearing you.
2. no its the dispute that is about payment - do they owe you money
3. you would need to show that you were in most respects an employee. For instance, what was the deal re tax? Did they deduct this at source, or were you responsible for your own affairs? If they deduct tax then its more likely you would be treated as an employee. But having thought about this some more, I would investigate agency workers legislation to establish your rights in this respect. Your local CAB should be able to help you here, or advise where to look. You could also try your local ACAS office. If you can show you were an agency worker and thus can claim employee rights then under schedule 4 section 10 of the Civil Jurisdication and Judgements Act you can sue them at their local court (up here) or your own local court, at your option. But if you cant claim employee rights in the sense of that Act, then from the quote I dug up, it seems that payment should be made at the premises of the creditor (ie where you are) and thus that your local court has jurisdiction.
4. my only point was that the notice would start to run down from the date they gave you notice. I think that was two days before you were due to start. if that means you were still due 10 days pay then fine. My thinking was you were due 10 days but they had given you notice 2 days before the start of the contract.
One last thing - in respect of the amount you are claiming, dont forget to add interest (8% is judicial interest) from date of expenditure to when the case is called.

Originally Posted by seriously fed up

1. dont know - I am in Scotland. Uusally when I am trying to help on this kind of thing, its the other way round (people up here getting sued in England). I would imagine though that the pursuer - the other side - will go in first, since if they cant convince the court that they have a case on the basis of their own argument/ evidence, there isnt much point in hearing you.
2. no its the dispute that is about payment - do they owe you money
3. you would need to show that you were in most respects an employee. For instance, what was the deal re tax? Did they deduct this at source, or were you responsible for your own affairs? If they deduct tax then its more likely you would be treated as an employee. But having thought about this some more, I would investigate agency workers legislation to establish your rights in this respect. Your local CAB should be able to help you here, or advise where to look. You could also try your local ACAS office. If you can show you were an agency worker and thus can claim employee rights then under schedule 4 section 10 of the Civil Jurisdication and Judgements Act you can sue them at their local court (up here) or your own local court, at your option. But if you cant claim employee rights in the sense of that Act, then from the quote I dug up, it seems that payment should be made at the premises of the creditor (ie where you are) and thus that your local court has jurisdiction.
4. my only point was that the notice would start to run down from the date they gave you notice. I think that was two days before you were due to start. if that means you were still due 10 days pay then fine. My thinking was you were due 10 days but they had given you notice 2 days before the start of the contract.
One last thing - in respect of the amount you are claiming, dont forget to add interest (8% is judicial interest) from date of expenditure to when the case is called.

SFU,

Thanks very much for your reply, I will be doing further research and submitting my counter arguments in writing 4 hours before the hearing.

I read this with interest but had nothing of value to add. Nevertheless I'm interested to learn the outcome. Please tell how it went yesterday?

Originally Posted by Coactum

I read this with interest but had nothing of value to add. Nevertheless I'm interested to learn the outcome. Please tell how it went yesterday?

The judge did not even listen to my side. In his opinion if a contract is drafted in Scotland then the jurisdiction is in Scotland - despite the absense of any jurisdiction clause.

Strange how so many cases listed within this site were wrongly perused in English Courts against person domicile in Scotland and yet their pleas that the English court had no jurisdiction were ignored, yet here you are on the other side of that coin so to speak.

The problem you faced was that you were arguably not an employee - agency work is a hard one (a cynical view would be that one of the reasons why employers like agency workers is that they can use the law to have tehir cake and eat it as well - treat you as an employee when it suits them, but when it doesnt they dont).
If you were an employee clear and simple, I would say appeal. Judges do get it wrong, and if you have a good root around this site you will see just how elaborately they can get it wrong. Its your employment status that concerns me, and what this means for you under the Civil Jurisdiction Act. You might want to think about following up my advice of consulting ACAS and see what they say. If you are lucky, you will get directed to someone there who will be able to give you a definitive answer (or they may direct you to somewhere else to get this). If you arent lucky they will send you a leaflet.

Originally Posted by seriously fed up

The problem you faced was that you were arguably not an employee - agency work is a hard one (a cynical view would be that one of the reasons why employers like agency workers is that they can use the law to have tehir cake and eat it as well - treat you as an employee when it suits them, but when it doesnt they dont).
If you were an employee clear and simple, I would say appeal. Judges do get it wrong, and if you have a good root around this site you will see just how elaborately they can get it wrong. Its your employment status that concerns me, and what this means for you under the Civil Jurisdiction Act. You might want to think about following up my advice of consulting ACAS and see what they say. If you are lucky, you will get directed to someone there who will be able to give you a definitive answer (or they may direct you to somewhere else to get this). If you arent lucky they will send you a leaflet.

Thanks for your reply,

The agreement meets some of the criteria of being an employee - ie set hours ,the company agreeing overtime not to mention the specific vetting process for the project. On the other hand, I was to pay taxes and if needed, I could hire someone to fill the role.
Due to the 5 year limit in Scotland, I have served a summons on the company in Scottish small claims. I am thinking of appealing anyway. If nothing else to reduce the legal charges of £1200 that was charged against me.

Yes, that is what I was getting at - its sort of yes you are/ no you're not - and many employers use this never/ never status to their advantage.
Were I you I would certainly get the best advice I possibly can about agency work and how you can nail these guys down with the legislation on agency work. This is somewhere to start http://www.direct.gov.uk/en/Employme...ns/DG_10027514. I really think you need advice from someone who has significant experience and expertise in this area. Are you a union member? They might be able to offer advice to you? Or, as I said, try ACAS.

Originally Posted by seriously fed up

Yes, that is what I was getting at - its sort of yes you are/ no you're not - and many employers use this never/ never status to their advantage.
Were I you I would certainly get the best advice I possibly can about agency work and how you can nail these guys down with the legislation on agency work. This is somewhere to start Using employment agencies : Directgov - Employment. I really think you need advice from someone who has significant experience and expertise in this area. Are you a union member? They might be able to offer advice to you? Or, as I said, try ACAS.

Thanks for the link. I have already read this and I spent a good part of the weekend investigating employee/agency worker scenario. I am member of PCS union and they could not help as they only provide 'advice' on this matter not specific assistance. I spoke to ACAS earlier today and they gave me a definitive answer albeit over simplified. My understanding is that the determining an employee is not in the statute booksin law, but it is in case law and there are a number of factors that may determine this either way. In many cases, an agreement is scrutinised in court which can result in define an employee further. I mentioned to the judge that I regard this an employment contract and under the Civil Jurisdiction act 1892, jurisdiction would be where the employee usually performs his work. He ignored my point and. That is why I will appeal.