Court of Appeal holds UK Tribunal had jurisdiction to hear
claims of unfair dismissal and sex discrimination brought by
employees who worked entirely outside of the UK.
The MOD challenged the decision of an Employment Tribunal
("ET") that it had jurisdiction to hear claims of unfair
dismissal and sex discrimination brought by employees who had
worked in Belgium and the Netherlands.
The MOD mounted its challenge primarily on the basis that the
relationship between the employees' work abroad and the
MOD's business in the UK, fell far short of the
"strong connections" required to bring them within the
jurisdiction of the UK Tribunal system.
The Court of Appeal held that the UK ET did have jurisdiction. It
distinguished this case from the earlier decision in Bryant v
Foreign & Commonwealth Office (in which it was held that the
Tribunal had no jurisdiction to hear claims brought in relation to
an individual who had worked at the British Embassy in Rome). The
Court accepted that there were "clear, firm, sound connections
with Britain" which gave the ET jurisdiction to hear the
complaints of unfair dismissal and discrimination (see
background).
Implications
While this case centred on an unusual set of facts and a working
arrangement that is peculiar to the MOD, it does provide an
indication of the potential scope of the "strong
connection" principle laid down in Lawson v Serco. This is one
of three principles that may be relied upon to seek to bring an
atypical overseas working arrangement within the jurisdiction of
the UK Tribunals for the purposes of an unfair dismissal
claim.
In relation to the claim of discrimination, the Court of Appeal
indicated its approval of the purposive approach adopted by the ET
to give effect to the employee's directly enforceable EU
right. The decision lends support to the argument that the courts
must interpret domestic legislation so that it is compatible with
the EU law from which it derives, or, failing that, must disapply
the territorial limitations relating to the domestic legislation
(such as those contained in Section 10 of the Sex Discrimination
Act).
This case was decided on the old discrimination legislation. No
such territorial limits exist under the Equality Act 2010
("the EqA"). The decision in this case suggests that the
courts will be willing to "fill the void" in the EqA by
deciding jurisdiction issues in discrimination cases by reference
to the test already laid down in Lawson for claims under the
Employments Rights Act 1996 ("the ERA"). This is a
welcome development, as it suggests that a single test for
territorial scope will develop by reference to the Lawson case,
avoiding the confusion and complication of having two distinct
tests for claims under the ERA and the EqA.
Background
The Claimants (Mrs Wallis and Mrs Grocott) were employed by the
MOD in schools in Belgium and the Netherlands. The positions had
only become available to them due to their status as UK dependants
of serving members of the armed forces based overseas.
The Claimants were dismissed when their husbands left the armed
forces. Mrs Grocott brought claims in the UK for unfair dismissal
and breach of contract. Mrs Wallis brought claims in the UK for
unfair dismissal, sex discrimination and breach of contract. The
MoD did not accept that the Tribunal had jurisdiction to hear the
unfair dismissal or sex discrimination claims, which it argued
should be heard in Belgium and the Netherlands.
In relation to the unfair dismissal claims, the Court of Appeal
acknowledged that the Claimants' performance of their work
entirely outside of Great Britain was a "potentially major
obstacle" to bringing the claims in the UK. However, it
accepted the Tribunal's original decision that there were
"clear, firm, sound connections with Britain" which
served to overcome such an obstacle. These included that the
Claimants were only eligible for their posts as dependants of
serving members of the armed forces, and their terms and conditions
of employment were governed by English law.
In relation to the claim of sex discrimination, the Court
acknowledged that Section 10 of the Sex Discrimination Act 1975
expressly limited the jurisdiction of the UK Tribunals to cases
involving work "wholly or partly in Great Britain".
However, it concluded that the Claimant would be able to pursue her
claim of sex discrimination notwithstanding this restrictive
provision because, outside of those statutory limits, she had
directly enforceable rights deriving from the EC Directive on which
the Sex Discrimination Act was based. The MOD constituted an
emanation of the State, against which EC law is directly
enforceable. The Court concluded that "once the British court
is properly seized of the issue, it would be obliged to give effect
to the directly enforceable right one way or another, irrespective
of which national body of rules applies".
In addition, the Court approved the Tribunal's approach of
adopting the principle of effective judicial protection in order to
read in to Section 10 words to cover a person employed "wholly
outside Great Britain but whose employment has sufficient
connection with Great Britain to entitle her to protection of
employment law in its jurisdiction".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.