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 establishments in Germany; under the NATO Status of Forces Agreement of 1951 he was part of the civil component of British Forces in Germany and treated as resident in the UK for various purposes. Mr Crofts was a pilot employed by a company which was a wholly owned subsidiary of, and provided aircrew for, Cathay Pacific Airways Ltd, the Hong Kong airline; but he was based at Heathrow under the airline’s ‘permanent basings policy’. Companies based in England took on these employees under contracts making the employments subject to UK law. Employment claims were made and the companies asserted that the UK employment laws did not apply.
Held: The sections had previously included a provision limiting jurisdiction, but that had been removed. The situations differed each on their facts, but a claim was available in principle: ‘it would be very unlikely that someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Great Britain. But that would not be enough. Many companies based in Great Britain also carry on business in other countries and employment in those businesses will not attract British law merely on account of British ownership. The fact that the employee also happens to be British or even that he was recruited in Britain, so that the relationship was ‘rooted and forged’ in this country, should not in itself be sufficient to take the case out of the general rule that the place of employment is decisive. Something more is necessary.
Something more may be provided by the fact that the employee is posted abroad by a British employer for the purposes of a business carried on in Great Britain. He is not working for a business conducted in a foreign country which belongs to British owners or is a branch of a British business, but as representative of a business conducted at home.
Lord Hoffmann, Lord Woolf, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond
[2006] UKHL 3, [2006] 1 ICR 250, Times 27-Jan-2006, [2006] 1 All ER 823, [2006] IRLR 289
Bailii
Employment Rights Act 1996 94(1) 230(1), Employment Tribunals (Constitution and Rules of Procedure) Rules 2001 SI 2001/1171
England and Wales
Citing:
At EAT – J Botham v Ministry of Defence EAT 1-Nov-2004
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke. . .
Leave to appeal – Botham v Ministry of Defence CA 14-Mar-2005
Leave given for appeal to the House of Lords . .
Appeal from – Crofts and others v Cathay Pacific Airways Ltd and others CA 19-May-2005
The claimants were airline pilots employed by the respondent company with headquarters in Hong Kong. The court was asked whether an English Tribunal had jurisdiction to hear their complaints of unfair dismissal.
Held: The pilots were employed . .
Appeal from – Serco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
Cited – Ex parte Blain; In re Sawers CA 1-Aug-1879
Where legislation regulates the conduct of an individual, it may be so construed as to limit it to conduct by United Kingdom citizens anywhere.
James LJ referred to ‘broad, general, universal principle that English legislation, unless the . .
Cited – Clark (Inspector of Taxes) v Oceanic Contractors Inc HL 16-Dec-1982
HL Income tax, Schedule E – Non-resident employer – Employees working in U.K. sector of North Sea – Whether employer liable to deduct tax from emoluments – Income Tax (Employments) Regulations 1973 – Income and . .
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 – Shelley’s case; Wolfe v Shelley 1581
If it is possible to do so, every word in a deed must be given effect. A judgment and the process known as recovery were effective even though the defendant had died in the early morning of the day on which, after his death, the court orders were . .
Cited – Van Grutten v Foxwell 1897
It would be dangerous to allow a jury, eight years after the event, to decide that a woman executing a deed had been incompetent to do so when at the time she had been certified competent. It is one thing to put the rule in a nutshell and another to . .
Cited – Todd v British Midland Airways CA 2-Jan-1978
The court discussed the test to be applied to an employment to see whether a British court had jurisdiction over it: ‘But in other cases there is more difficulty. I refer particularly to the type of case we have here of the airline pilot. He is . .
Cited – British Airways Board v Laker Airways Limited HL 1985
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful . .
Cited – Moyna v Secretary of State for Work and Pensions HL 31-Jul-2003
The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .
Cited – Re Paramount Airways Ltd (In Administration) CA 8-Apr-1992
It was said that there had been a transction at an undervalue within section 238. It was given effect by a transfer to a bank in Jersey, from which recovery was no sought. The bank claimed that the section did not have extra-territorial effect.
Cited – Carver (Nee Mascarenhas) v Saudi Arabian Airlines CA 17-Mar-1999
The applicant was recruited in Saudi Arabia in 1986 as a flight attendant under a contract expressed to be subject to Saudi Arabian law. After being trained in Jeddah, and then employed in India for four years, she was transferred to be based in . .
At EAT – Lawson v Serco Ltd EAT 12-Dec-2002
EAT Jurisdiction . .
Cited – Financial Times Ltd v Bishop EAT 25-Nov-2003
The Tribunal considered the applicability of the 1996 Act to those employed abroad after the repeal of s196: ‘In our view the repeal of section 196 (2) cannot be taken to have had the effect that employees who had or whose employment had a . .
Cited – Jackson v Ghost Ltd and Another EAT 2-Sep-2003
The EAT rejected jurisdiction over a claim for unfair dismissal. The employment must have ‘a sufficient, that is substantial connection with this country’. . .
Cited – Bryant v The Foreign and Commnonwealth Office EAT 10-Mar-2003
Section 94(1) of the 1996 Act did not apply to protect a British national locally engaged to work in the British Embassy in Rome. . .
Cited by:
Cited – Smith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
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 – Edwards v Chesterfield Royal Hospital NHS Foundation Trust CA 26-May-2010
The claimant, a consultant doctor, sought damages saying that his employer had failed to follow the contract when disciplining and dismissing him. The GMC had dismissed as unfounded the allegation on which the dismissal was based. He sought damages . .
Cited – Botham v The Ministry of Defence QBD 26-Mar-2010
botham_modQBD10
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
Cited – Bleuse v MBT Transport Ltd and Another EAT 21-Dec-2007
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 . .
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: . .
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 – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Cited – 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 – 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.
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 – 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.
Employment
Updated: 10 December 2021; Ref: scu.238141
