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.
Held: The company’s appeal failed. The details that he was dismissed by a manager working in Cairo for another member of the group could not hide the fact that he had been sent to Libya in furtherance of the purposes of the appellant’s subsidiary. The company chose to treat him as a commuter with a rotational working schedule, allowing him to spend as much time here as in Libya, and the company had given him re-assurances that his employment would remain governed by UK law.
Lord Hope emphasised that the court’s task was to give effect to what Parliament may reasonably be taken to have intended to be the scope of Section 94. That the relationship was ‘rooted and forged’ in Great Britain, whilst never unimportant, was not sufficient in itself to take the case out of the general rule that the place of work is determinative of jurisdiction. He added: ‘I agree that the starting point needs to be more precisely defined. It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. The open-ended language of Section 94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified. The case of the peripatetic employee who is based in Great Britain is one example. The expatriate employee, all of whose service is performed abroad, but who had nevertheless very close connections with Great Britain because of the nature and circumstances of employment, is another . . It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly ex-patriate because they not only work but also live outside of Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them.
But it does not follow that the connection that must be shown in the case of those who are not truly expatriate because they are not both living and working overseas must achieve the high standard that would enable one to say that their case was exceptional. The question whether on given facts the case falls within the scope of Section 94(1) is a question of law, but it is also a question of degree . . The question of law is whether Section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment in Great Britain and British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.’
Lord Hope, Lady Hale, Lord Brown, Lord Mance, Lord Kerr
[2012] UKSC 1, [2012] WLR (D) 24, UKSC 2010/0154, [2012] ICR 389, [2012] IRLR 315, 2012 SLT 406, [2012] 2 All ER 905, 2012 GWD 6-106
Bailii, WLRD, SC, SC Summary, Bailii Summary
Employment Rights Act 1996 94(1)
Scotland
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 – Wilson v Maynard Shipbuilding Consultants AB CA 1978
The applicant, a management consultant was said by his employer to ‘ordinarily work outside Great Britain’ and thus to be outside the protection of UK employment legislation.
Held: The legislation had in ‘deceptively simple-looking words’ . .
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 – Ministry of Defence v Wallis and Grocott CA 8-Mar-2011
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 . .
Appeal from – Ravat v Halliburton Manufacturing and Services Ltd SCS 22-Jun-2010
The pursuer, living in England was dismissed from a post by the defenders whilst he was working for them in Libya. He claimed unfair dismissal. They said that his employment was not subject to British Law.
Held: The employment was governed by . .
Cited by:
Cited – 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. . .
Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
Cited – Daejan Investments Ltd v Benson and Others SC 6-Mar-2013
Daejan owned the freehold of a block of apartments, managing it through an agency. The tenants were members of a resident’s association. The landlord wished to carry out works, but failed to complete the consultation requirements. The court was . .
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.
Scotland, Employment
Updated: 31 October 2021; Ref: scu.450973
