EAT Working Time Regulations
Unfair Dismissal – Exclusions including worker/jurisdiction
The claimant, a lorry driver, worked mainly in Austria and Germany, but had a contract of employment with a company registered in England. The contract identified English law as the proper law and sought to confer exclusive jurisdiction on the English courts. The claimant lodged a number of claims in the Employment Tribunal for constructive unfair dismissal, failure to pay holiday pay, unlawful deductions from wages and breach of contract. At a preliminary hearing the issue arose whether the territorial scope of the statutory provisions extended to the claimant. The Tribunal concluded that they did not, principally by applying the approach adopted by the House of Lords in Lawson v Serco Ltd [2006] ICR 250.
In a separate and later decision another Chairman considered whether the claim for breach of contract was in time, and held that it was not. It is accepted that even if the Chairman at the earlier hearing had accepted jurisdiction, this ruling would have also applied to the statutory claims and they could not have been pursued in any event.
Both rulings are challenged on appeal. The EAT held that the Tribunal had erred in its approach to the question of extending time and the issue was remitted to a fresh Tribunal. As to the territorial scope issue, the EAT held that the Tribunal had been right to reject the claims for unfair dismissal and unlawful deduction from wages, and that the principles enunciated in the Serco case were properly applied. However, the EAT held that the claimant could, subject to succeeding on the time point, pursue the claim for holiday pay. There was a directly effective right derived from the European Directive and this could be given effect by construing the Working Time Regulations in a manner which was compatible with the terms of the Directive. Even if the statutory provision would otherwise have been limited to those who had a base in the UK, the effect of EU law was that it had to be extended so as to apply also to those who had rights conferred upon them by EU law.
Judges:
Elias P
Citations:
[2008] IRLR 264, [2008] ICR 488, [2007] UKEAT 0339 – 07 – 2112
Links:
Citing:
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited by:
Cited – Duncombe and others v Department for Education and Skills EAT 24-Apr-2008
Duncombe_desEAT2008
EAT Jurisdictional Points – Working outside the jurisdiction
Fixed Term Regulations
Extra-territorial jurisdiction. Teachers working abroad. Breach of contract claim within ET jurisdiction. Whether . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families CA 14-Dec-2009
The court considered the workings of fixed term employment contracts under which the claimants taught in Europe. The Secretary of State argued that the contracts validly limited the claimants’ employment to nine years. The claimants said the 2002 . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families SC 29-Mar-2011
The government operated European Schools catering for children of staff of the European Community. The school staff challenged as unlawful, the contracts restricting their terms of employment with the schools to a maximum of nine years.
Held: . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 13 July 2022; Ref: scu.263987
