Lawson v Serco Ltd; Botham v Ministry of Defence; Crofts v Veta Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,THE MASTER OF THE ROLLS |
| Judgment Date | 14 March 2005 |
| Neutral Citation | [2005] EWCA Civ 400,[2004] EWCA Civ 12 |
| Docket Number | A2/2004/2525,Case No: A1/2003/0649/A |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 2005 |
[2004] EWCA Civ 12
Lord Justice Pill
Lord Justice Mummery and
Lord Justice May
Case No: A1/2003/0649/A
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE ALTMAN
AT THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
MR E SUTER (instructed by Serco Ltd) for the Appellants
MR ALGAZY and MR P SPENCER (instructed by Mills, Kemp & Brown, Barnsley, S70 2LP) for the Respondent
MR MOFFETT (instructed by the Treasury Solicitor) for the Interested Party
This is the judgment of the Court:
This is an appeal by Serco Limited ("the appellants") against a decision of the Employment Appeal Tribunal made on 11 March 2003 whereby they allowed an appeal from a decision of an Employment Tribunal held at Watford and promulgated on 30 October 2001. The Employment Tribunal had held that it had no jurisdiction to consider a complaint of unfair dismissal made by Mr Stephen Lawson ("the respondent") against his employers, the appellants. The Foreign and Commonwealth Office was granted permission to take part in the appeal as an interested party in relation to the territorial extent and applicability of the relevant legislation.
The appellants are a company registered in England and Wales with a head office in Middlesex. The company provided support services for the RAF and civilian police on Ascension Island. The respondent was appointed a security supervisor as from 22 September 2000. He is of British nationality, domiciled in England. He 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 his work was on Ascension Island. No mention was made of any law other than the law of England applying to the contract.
Difficulties arose because of the number of additional hours the respondent was required to work. He resigned on 6 April 2001 in circumstances which he claimed amounted to a constructive dismissal.
Application was made to the Employment Tribunal on 8 June 2001. The qualifying period for an ordinary claim for unfair dismissal had not been served but it was claimed that the respondent's health and safety was being put in peril by the requirement to work long hours and a claim could be brought because the respondent was asserting a right under the Working Time Regulations 1998. It would be necessary for the Employment Tribunal to make findings of fact on this issue. The EAT dismissed a cross-appeal by the present appellants that the health and safety issue had not been raised before the Employment Tribunal.
The issue of jurisdiction does not turn upon the precise status of Ascension Island, a small island in the South Atlantic Ocean, but it may be described briefly. It is a dependency of St.Helena, which is an overseas territory of the United Kingdom. St.Helena has a legislative council. Legislative power over its dependencies is vested in its Governor. If there is no inconsistency with local law, and subject to local circumstances, the law of England will apply.
Elaborate arguments have been addressed to tribunals in this and other cases where the jurisdictional issue has arisen. A jurisdictional test was formerly provided in Section 196 of the Employment Rights Act ("the 1996 Act") . Sub-section (2) provided that sections 94 and 95, amongst other sections, did not apply to employment "where under the employee's contract of employment he ordinarily works outside Great Britain". The statutory provisions which originally conferred the right of action for unfair dismissal, the Industrial Relations Act 1971, Section 22, and the Trade Union and Labour Relations Act 1974, Schedule 1 para. 9(2), provided that the right did not apply to any employment "where under the contract of employment the employee ordinarily works outside Great Britain". Section 196 of the 1996 Act was repealed by Section 32(3) of the Employment Relations Act 1999 with effect from 25 October 1999. Claims have since been brought, in a variety of circumstances, by employees engaged in work wholly or mainly outside Great Britain, by which expression we refer to England and Wales, and Scotland.
Tests have been suggested as substitutes for the former test under Section 196. These have included a sufficient or substantial connection test, a "base" test, a "territorial extent" test based on Section 244 of the 1996 Act and the test favoured by the EAT in the present case which provides no fetter on jurisdiction where the claim is brought against an employer who resides or carries on business in England and Wales. That limit is supplied, it is contended, by Regulation 11(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 which defines the proceedings in which the rules shall apply. The EAT stated, at paragraph 17, that "in all cases it is the proximity of the respondent to the United Kingdom that provides the yardstick for determining jurisdiction."
In our judgment, consideration of this issue must start with the section in the 1996 Act creating the statutory right relied on. This case is concerned with the statutory right in Section 94 (1) of the 1996 Act not to be unfairly dismissed. Section 94 (1) provides that "an employee has the right not to be unfairly dismissed by his employer". The question is: what are the employments covered by the section ? The answer, in our judgment, is straightforward though it may be difficult to apply in some cases: employment in Great Britain. It is necessary to consider the several factors which have led us to that conclusion.
We start on the basis that it is highly unlikely that Parliament intended to give this statutory right to all employees wherever they worked, subject to being able to serve proceedings on an employer in Great Britain. Far from it being inevitable that the repeal of section 196 produced that result, as found by the EAT, it would be necessary to find the plainest indications in the legislation, without section 196, before it could be concluded that Parliament intended to confer such a wide jurisdiction upon a domestic tribunal.
Two possible reasons for the repeal of section 196 are evident from the legal context of the 1999 Act. They are obvious without reference to, though confirmed by, a statement of the Minister of State in the House of Commons when introducing the amendment to the Employment Relations Bill which led to the repeal of Section 196. The reasons are, first to meet the requirements of the Posting of Workers Directive (96/71/EC) and, second, an intention to mitigate the effect of the decision of this court in Carver v Saudi Arabian Airlines [1999] ICR 991, to which case reference will be made.
An examination of the 1996 Act as a whole does not support the startling proposition that, in the absence of the former Section 196, Section 94 (1) confers the right not to be unfairly dismissed on employees everywhere. As James LJ stated in ex parte Blain (1879) 12 Ch D 522 at 528: "the governing principle is that all legislation is prima facie territorial", although the position of British subjects was more broadly stated in that case, Cotton LJ stating, at page 531, that "all laws of the English Parliament must be territorial – territorial in this sense, that they apply to and bind all subjects of the Crown who come within the fair interpretation of them……."
In Tomalin v S Pearson and Son Ltd [1909] 2 KB 61 it was held that the Workmen's Compensation Act 1906 did not apply to an accident happening abroad. It was held that, subject to exceptions provided in the Act, including in section 7, it did not apply to an accident beyond the territorial limits of the United Kingdom. Cozens-Hardy MR stated, at page 64:
"What is the widow's claim here ? She is claiming, not as a party to the contract, not as claiming any rights under a contract made by her or by any person through whom she claims, but she is simply claiming the performance by the defendants of a statutory duty, which statutory duty is said to be found in the Workmen's Compensation Act. Now that brings us face to face with this proposition. What is the ambit of the statute and what is the scope of its operation ? It seems to me reasonably plain that this is a case to which the presumption which is referred to in Maxwell on the Interpretation of Statutes in the passage at p. 213, …… must apply: "In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate beyond the territorial limits of the United Kingdom."
Farwell LJ stated, at page 65:
"The question is one purely of the construction of the statute. The words of s.1, sub-s 1, are so wide that some limitation must necessarily be affixed to them. The words are, "If in any employment personal injury by accident arising out of and in the course of the employment is caused to any workman," and so on. To my mind the words "any employment" there must be restricted to employment within the ambit of the United Kingdom or on the high seas as provided by s.7."
Section 244 (1) of the 1996 Act provides:
"This Act extends to England and Wales, and Scotland, but not to Northern Ireland."
We do not accept the submission made by Mr Suter, on behalf of the appellants, that the territorial limitation in Section 244 concludes the present issue. That section defines the area within which the enactment is law, the first...
To continue reading
Request your trial
-
Ismail Ravat V. Halliburton Manufacturing And Services Limited
...He referred to what he described in paragraph 16 as "the most simple and elegant solution", adopted by Pill LJ in the Serco case [2004] ICR 204, 207, para 8: "The question is: what are the employments covered by the section? The answer, in our judgment, is straightforward though it may be d......
- Shekar v Satyam Computer Services Ltd
-
R (Al-Skeini) v Secretary of State for Defence
...United Kingdom. See Bennion, Statutory Interpretation 4th ed. (2002), sections 106 and 128, at pp. 282 and 306; Lawson v. Serco LtdICR [2004] ICR 204, paras. 8, 11–16 and 22; and Tomalin v. S. Pearson & Son LtdELR [1909] 2 KB 61, 64, per Cozens-Hardy MR, approving the following passage from......
-
R (Al-Skeini) v Secretary of State for Defence
...outside the United Kingdom. See Bennion, Statutory Interpretation (4th Edition) , ss 106 and 128 at pp 282 and 306; Lawson v Serco Ltd [2004] EWCA Civ 12 at [8], [11]-[16] and [22]; [2004] ICR 204; and Tomalin v Pearson [1909] 2 KB 61, 64per Cozens-Hardy MR, approving the following passage......
-
Holiday Pay and the Atypical Worker
...v Essa [2004 ]EWCA Civ.02;Johnson v Unisys [2001 ]IRLR 269;Dunnachie v Hull City Council [2004 ]EWCA Civ 84 (CA);Serco Limited v Lawson [2004 ]EWCA Civ 12 The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your ......