Effect of dismissal abroad

Lawson v Serco Ltd CA TLR 23 January

The employer was an English registered company with a head office in Middlesex, which provided support services for the RAF and civilian police on Ascension Island. The employee was interviewed in England, paid in pounds sterling in England and was given a ‘no tax’ coding by the Inland Revenue on the ground that he worked on Ascension Island as a security supervisor. Ascension Island is a dependency of St Helena which is an overseas territory of the UK where legislative power is vested in the Governor and where, if there was no inconsistency with local law, the law of England applies. Following difficulties arising from the requirement to work additional hours, the employee resigned in circumstances which he claimed amounted to unfair dismissal. Did the employment tribunal have jurisdiction to hear his claim? ‘No’, said the Employment Tribunal. ‘Yes’ said the Employment Appeal Tribunal. ‘Definitely no!’ said the Court of Appeal – there was no doubt on the evidence that the Employment Tribunal had no jurisdiction to consider the employee’s complaint. Section 196 of the Employment Rights Act 1996 relating to employment outside Great Britain was repealed with effect from October 1999, since when tests have been suggested as substitutes for it. The question was: ‘What were the employments covered by s94(l) which provides an employee with the right not to be unfairly dismissed?’ The answer is straightforward, although it might be difficult to apply in some cases: ‘Employment in Great Britain.’ Jurisdiction was not determined by the rules of procedure for employment tribunals. Nor by the ‘substantial connection’ test adopted by the appeal tribunal in Jackson v Ghost [2003] IRLR 824. The location of the employee’s base might throw some light on whether the employment was in Great Britain. The Court accepted the need for a degree of flexibility in applying the test. Protection in a jurisdiction from which there was a temporary absence was not necessarily excluded. A dismissal during a single, short absence from Great Britain would not normally exclude the protection of the Act. In most cases it would not be difficult to decide where the employment was. Borderline cases would depend on an assessment of all the circumstances of the employment in the particular case; but the emphasis had to be on the employment itself: that was the legislative grasp of the 1996 Act. The present case was concerned with unfair dismissal. Different considerations would apply when contractual claims, for example for wrongful dismissal, were to be determined. There was no need to consider that point here.