Mrs Wallis was employed by the Ministry of Defence at the international school attached to SHAPE in Belgium. Mrs Grocott was employed by the Ministry in the British section of the Armed Forces North International School in the Netherlands. Both SHAPE and JFC are entities within the structure of NATO. They were recruited because they were the wives of forces personnel. Both were dismissed when their husbands left the armed forces. In the agreed facts, the Ministry saw it desirable for the harmony of the family life of forces members, or the ancillary civilian component, that there are employment opportunities for their spouses and other dependants. Their employments were governed by English law and the Ministry reassure such employees that their terms and conditions were essentially English. They were not ‘directly employed labour’, those engaged locally with the help of the host state, on local (host state) labour terms, regardless of their nationality, and pay local taxes.
The employment judge rejected the argument that the women were working within a British enclave; they were working within an international enclave. However, their employment was so closely connected to England as to be within section 94(1) of the Employment Rights Act 1996. They were ‘piggy-backed’ by their husbands into the same terms and conditions as employees of the British armed forces posted to serve abroad, within the ‘Botham’ exception. They were in a quite different position from the locally engaged ‘directly employed labour’ such as Mrs Bryant: Mrs Bryant’s connection was the fortuitous one of nationality in what would otherwise be a standard case of directly employed labour.
Held: The reasoning was accepted. Elias LJ said: ‘They were the spouses of persons who formed part of a British contingent working in an international enclave, and they obtained their employment only because of that relationship. In my judgment they have equally strong connections with Great Britain and British employment law as those employed in British enclaves abroad’.
Mummery LJ rejected the Ministry’s submission that this would be to ‘export’ British unfair dismissal law to a foreign country and contrary to the principles of sovereignty and equality of states in international law: ‘Considerations of international comity could not possibly affect the claimants’ husbands’ access to an employment tribunal for unfair dismissal from the armed forces and I do not see how they could affect claims by the claimants if there is a sufficiently strong connection of their employment to Great Britain and its unfair dismissal law’. He explained the correct approach of national courts to the interpretation of European Directives: ‘It is the function of the national courts to interpret the statutory provisions of domestic law, so far as it is possible to do so, to be compatible with the Directive . . If a compatible construction is not possible then effect must be given to the directly effective superior norms of the Directive. Domestic courts are required to disapply incompatible provisions of domestic law to the extent necessary to give effect to the directly enforceable rights derived from the Directive or other EU measure.’
Judges:
Mummery, Etherton, Elias LJJ
Citations:
[2011] EWCA Civ 231, [2011] 2 CMLR 42, [2011] ICR 617
Links:
Statutes:
Employment Rights Act 1996 94(1) 230(1)
Jurisdiction:
England and Wales
Citing:
Appeal from – Ministry of Defence v Wallis and Another EAT 30-Jul-2010
EAT JURISDICTIONAL POINTS – Working outside the jurisdiction
The Claimants were wives of service personnel working at NATO headquarters in Belgium and in the Netherlands – Because of that status they were . .
Cited by:
Cited – Molaudi v Ministry of Defence EAT 15-Apr-2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .
Cited – Ravat v Halliburton Manufacturing and Services Ltd SC 8-Feb-2012
The respondent was employed by the appellant. He was resident in GB, and was based here, but much work was overseas. At the time of his dismissal he was working in Libya. The company denied that UK law applied. He alleged unfair dismissal.
See Also – Clyde and Co Llp v Van Winkelhof EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 03 September 2022; Ref: scu.430368