Ismail Ravat V. Halliburton Manufacturing And Services Limited
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Osborne,Lord Brodie |
| Judgment Date | 22 June 2010 |
| Neutral Citation | [2010] CSIH 52 |
| Date | 22 June 2010 |
| Published date | 22 June 2010 |
| Court | Court of Session |
| Docket Number | XA33/09 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Carloway Lord Brodie | [2010] CSIH 52 XA33/09 OPINION OF LORD OSBORNE in an appeal to the Court of Session under section 37(1) of the Employment Tribunal Act 1996 by ISMAIL RAVAT Appellant; against HALLIBURTON MANUFACTURING & SERVICES LTD Respondents: _______ |
Respondents: Truscott QC; Paull & Williamsons
22 June 2010
[1] I gratefully adopt the account of the background circumstances of this appeal and the summary of the contentions of the parties, some of which are more fully set out in such written submissions as were tendered, given in the opinion of Lord Brodie. A full and uncontroversial account of the facts found by the Employment Tribunal, relevant to their consideration of the issue of their jurisdiction, is to be found in their judgment in paragraphs 4 to 20.
[2] The judgment of the Employment Tribunal was the subject of an appeal to the Employment Appeal Tribunal on a question of law. The present appeal is brought, again on a question of law, with leave granted by the Employment Appeal Tribunal, to this court. In these circumstances, the question for us is whether the Employment Tribunal erred in law in holding that, on the facts found by it, that Tribunal had jurisdiction to entertain the appellant's claim for compensation for unfair dismissal.
[3] In order to answer that question, it is necessary, first, to identify the correct criterion to be applied in deciding the issue of jurisdiction. Secondly, the judgment of the Employment Tribunal must be examined to see whether any error of law occurred in the application of that criterion to the facts of the case, as found by it.
[4] As regards that first issue, it became apparent during the course of the debate before us that the decision of the House of Lords in Lowson v Serco Limited [2006] ICR 250 must be in the forefront of consideration. For that reason, I propose to examine that case in some detail, with a view to attempting to identify the criterion which has to be applied in deciding the issue of jurisdiction. At the outset, it is instructive to note that the decision in Lawson v Serco Limited was, in fact, a decision in relation to three separate appeals, that mentioned, Botham v Ministry of Defence and Crofts v Veta Limited. In the first of these, the applicant was a British national, who was employed by the respondents, a company registered in England, as a security supervisor at an RAF base on Ascension Island. He was interviewed in England, paid in pounds sterling and given a "no tax" coding by the Inland Revenue on the basis that he worked on the island, a dependency of a United Kingdom overseas territory. The applicant resigned and brought a complaint of unfair dismissal pursuant to section 94(1) of the Employment Rights Act 1996, "the 1996 Act", in an Employment Tribunal in England. The Tribunal held that it had no jurisdiction to hear the complaint. The Employment Appeal Tribunal allowed an appeal by the applicant but, on appeal by the employer, the Court of Appeal held that the Tribunal did not have jurisdiction since section 94(1) applied only to employment in Great Britain.
[5] In the second case, the applicant, who was a British national, was employed by the Ministry of Defence as a youth worker at various military bases in Germany. As part of the civil component of the British Forces in Germany, he was treated as resident in the United Kingdom and paid United Kingdom tax and National Insurance contributions. When he was summarily dismissed, made a complaint of unfair dismissal to an Employment Tribunal in England. The Tribunal, the Employment Appeal Tribunal and the Court of Appeal concluded that they were bound by the decision of the Court of Appeal in the first case. Leave to appeal was granted to the applicant.
[6] In the third case, the applicant was an airline pilot employed by the respondent company, which was a wholly-owned subsidiary of a Hong Kong based airline. Both the respondent and its parent company were incorporated in Hong Kong. The airline operated a policy whereby certain air crew were based permanently at airports outside Hong Kong. The applicant was based at Heathrow airport and lived in the United Kingdom. He was dismissed and claimed that his dismissal was unfair. The Employment Tribunal held that it had jurisdiction to hear the claim. The Employment Appeal Tribunal allowed an appeal by the employer on the ground that the Employment Tribunal had applied the wrong test but, on appeal by the applicant, the Court of Appeal held that the Employment Tribunal did have jurisdiction to hear the claim. These three cases came before the House of Lords on appeal by the applicants in the first two cases and by the employers in the third case. In those appeals, the House of Lords held, first, that section 94(1) of the 1996 Act, which, of course, provides that: "An employee has the right not to be unfairly dismissed by his employer", did not have worldwide application and that the court had to give effect to its implied territorial limitation; further, that whether section 94(1) applied to any particular employment relationship was a question of law and that there was no basis for the exercise of a discretion; also that it would be contrary to principle for a claim under section 94(1) to be stayed on the ground of forum non conveniens; and that ordinarily the application of section 94(1) should depend on whether the employee was working in Great Britain at the time when he was dismissed. The House of Lords went on to hold, second, that, in the employer's appeal in the third case, when it came to a peripatetic employee, such as an airline pilot, the only sensible option was to determine where he was based; and that the Employment Tribunal had been right to reach the conclusion that the applicant in the third case had been based in Great Britain and came within the scope of section 94(1). Third, allowing the appeals of the applicants in the first two cases, the House of Lords held that, while it would be unusual for an employee who worked and was based abroad to come within the scope of section 94(1), there would be some who did, including a person posted abroad by a British employer for the purposes of a business conducted in Great Britain and an employee of a British employer operating within what was in effect an extra territorial British enclave in a foreign country; that the latter was the position of the applicants in the first two cases, who worked on British military bases abroad; and that, consequently, the Employment Tribunal had jurisdiction to hear their claims for unfair dismissal.
[7] The sole substantive judgment in the case was delivered by Lord Hoffmann, in which the four other judges who heard the appeals concurred. Thus it is appropriate to consider Lord Hoffmann's judgment, with a view to discerning the criterion for jurisdiction which must be applied in cases such as these. The exercise just mentioned is not an easy one, since his Lordship was at pains not directly to propone such a criterion. It appears to me to be necessary to infer from what he does say what that criterion is. In paragraph 1 he observes, in relation to the operation of section 94(1) of the 1996 Act, that the section:
"... tells us nothing about the connection, if any, which an employee or his employment must have with Great Britain. Nevertheless, all parties to these appeals are agreed that some territorial limitations must be implied. It is inconceivable that Parliament was intending to confer rights upon employees working in foreign countries and having no connection with Great Britain. The argument has been over what those limitations should be. Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair? The answer to this question will also determine the question of jurisdiction, since the Employment Tribunal will have jurisdiction to decide upon the unfairness of the dismissal if (but only if) section 94(1) is the appropriate choice of law."
Thus, it is apparent from this passage that the search has to be for some connection between the employment relationship and Great Britain. The nature of that connection remains to be elucidated. Plainly, the matter is not free from difficulty for the reason that Lord Hoffmann gives in paragraph 6 of his judgment:
"Where legislation regulates the conduct of an individual, it may be easy to construe it as limited to conduct within the area of applicability of the law, or sometimes by United Kingdom citizens anywhere: see Ex parte Blain; in Re Sawers (1879) 12 Ch.D. 522. But section 94(1) provides an employee with a special statutory remedy. Employment is a complex and sui generis relationship, contractual in origin but, once created, having elements of status and capable of having consecutive or simultaneous points of contact with different jurisdictions. So the question of territorial scope is not straightforward. In principle, however, the question is always one of the construction of section 94(1)."
[8] Later on in his judgment Lord Hoffmann proceeded to consider the implications of the repeal of section 196 of the 1996 Act, which had contained various geographical provisions affecting the territorial scope of the legislation. In paragraph 11, Lord Hoffmann says of the situation existing prior to the repeal of that section:
"First, the original exclusion of cases in which the employee ordinarily 'works outside Great Britain' shows that when Parliament created the new remedy in 1971, it thought that the sole criterion delimiting its territorial scope should be the place where the employee worked. If he...
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