Employment Appeal Tribunal
The test for determining the employment tribunal's extra-territorial jurisdiction under the Employment Rights Act 1996 was whether the employment was in Great Britain, as approved in Lawson v Serco Ltd [2004] EWCA Civ 12, [2004] 2 All E.R. 200.
There were five conjoined appeals concerning the extra-territorial jurisdiction of the employment tribunal (the tribunal) following the repeal of the Employment Rights Act 1996 s.196. Two of the appeals also concerned the tribunal's jurisdiction in breach of contract claims under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. In the first appeal, the employer (S) was registered in the UK and provided support services to overseas members of the armed forces. The employee (M) was employed as a psychiatric nurse and posted in Germany. She resigned and brought proceedings for constructive dismissal. The tribunal held that it had jurisdiction to entertain her claim. S appealed. The second and third cases concerned airline pilots. The employers (C, V and U) were companies incorporated in Hong Kong. C had a branch office in the UK. At all relevant times, C's pilots were based in Hong Kong and V's pilots were based in London. P was employed by U but lived in the UK. All the pilots were paid and taxed in Hong Kong. Following their dismissal, the pilots all lodged complaints at a tribunal in England. The tribunal held that it had jurisdiction to entertain complaints brought under the 1996 Act by V's pilots but not C's pilots nor P. It held that it had jurisdiction to entertain breach of contract claims brought by V's pilots but not P. Also, whilst it had jurisdiction to entertain the breach of contract claims by C's pilots, it declined on forum non conveniens grounds and stayed them. C's pilots appealed in relation to the stay. V appealed against the tribunal's decision that it had jurisdiction in respect of the unfair dismissal and breach of contract claims. P appealed against the tribunal's dismissal of both his claims. In the fourth appeal, the employer (S) appealed against the decision of a tribunal by which it assumed jurisdiction to entertain the claim for unfair dismissal and breach of contract brought by an employee (X). S was a Norwegian company domiciled in Norway. X was employed to work in its offices in Ireland and Northern Ireland. She was also permitted to work from her home in England. In the fifth appeal, the employer (E) appealed against a decision that the tribunal had jurisdiction to entertain a claim for unfair dismissal by an employee (B). E was registered and domiciled in Cyprus. B was based in Scotland. He entered into a contract by which he agreed to work in Nigeria. Following his dismissal, he complained of unfair dismissal and breach of contract.
HELD: Following the repeal of s.196, the Court of Appeal in Lawson v Serco Ltd (2004) EWCA Civ 12, (2004) 2 All ER 200 held that the protection offered by the 1996 Act only applied to employment in Great Britain, Lawson, applied. As to the first appeal, it was clear that M was employed wholly in Germany. Thus, she fell outside the Serco test of employment in Great Britain. On that basis, S's appeal was allowed and a declaration made that the tribunal did not have jurisdiction to entertain M's claim of unfair dismissal. In the second and third appeals, the first issue concerned the stay of the claim by C's pilots for breach of contract. It was clear that the tribunal had the power to consider the forum doctrine and in an appropriate case, to order a stay. Its decision to do so could therefore not be faulted. As to the unfair dismissal claims of V's pilots, the tribunal applied the wrong test in determining whether it had jurisdiction. Consequently, the claims were remitted for reconsideration in light of the Serco test. The breach of contract claims by V's pilots were also remitted in order to determine the correct forum. The tribunal had erred by taking into account, as a factor in deciding jurisdiction, the fact that it apparently had jurisdiction to hear the unfair dismissal claims. The last issue concerned the tribunal's rejection of P's claims. His claim for unfair dismissal was rightly dismissed as he was not employed in Great Britain in accordance with the Serco test. His breach of contract claim was also correctly dismissed as U did not have a place of business or carry out its activities within Great Britain. In respect of the fourth appeal, the tribunal erred in holding that X was habitually employed in England and it could therefore hear her claim for breach of contract. The tribunal did not follow the approach in Weber v Universal Ogden Services Ltd [2002] Q.B. 1189 . It failed to make findings as to the nature and importance of the work done in both England and in Ireland. Moreover, it did not consider the possibility that X did not habitually work in any one country. The tribunal's decision on the point was not reasoned from its findings of fact. In addition, the tribunal also erred in holding that it had jurisdiction to entertain X's claim for unfair dismissal. It relied upon the finding that X habitually worked in England in order to found jurisdiction under the 1996 Act. Both decisions were flawed and were remitted for rehearing. In relation to the fifth appeal, B was employed solely in Nigeria. Accordingly, it could not be said that his employment was in Great Britain applying the test in Serco. On that basis, E's appeal was allowed and the decision of the tribunal set aside for want of jurisdiction.
[2004] ICR 1733
