EAT Unfair dismissal and Race Relations Act 1976
Unfair dismissal – Exclusions including worker/jurisdiction
Three cases were stayed pending the judgment of the House of Lords in Lawson v Serco  ICR 250. The appeal in the British Council case was dismissed on withdrawal after the hearing and before the judgment. In ADT, the Employment Tribunal correctly held that the Claimant was employed by the Respondent, albeit that he had not had his contract of employment transferred to it by operation of TUPE. He had worked continuously abroad for seven and a half years. Now applying Serco, his case did not fit any of the categories and so the Tribunal did not have jurisdiction to hear his unfair dismissal claim.
In the NAAFI case, the Claimant’s right to claim unfair dismissal was conceded post-Serco. There was no dispute that under the old Disability Discrimination Act 1995, jurisdiction was excluded since he had worked in Germany for over 30 years. He could not bring a claim for dismissal or disability discrimination in the German labour court if the NATO Status of Forces Agreement 1949 which exclude such rights is to be given effect by German law. He could not bring a claim in Britain under the Framework Directive 2000/78/EC, relying on Mangold v Helm, because the date for transposition of the directive had not arrived and no measure was taken by the United Kingdom to frustrate its transposition. The Claimant’s Convention rights were not breached since he had no substantive right upon which to base a Convention right. The EAT declined to make a reference to the ECJ or to give permission for an appeal to the Court of Appeal so that the Claimant could seek a declaration of incompatibility under the Human Rights Act 1998.
His Honour Judge McMullen QC
England and Wales
Updated: 10 May 2022; Ref: scu.257849