Wallis v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Elias,Lord Justice Etherton |
| Judgment Date | 08 March 2011 |
| Neutral Citation | [2011] EWCA Civ 231 |
| Docket Number | Case No: A2/2010/2085 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 March 2011 |
[2011] EWCA Civ 231
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
The Hon Mr Justice Underhill
Before : Lord Justice Mummery
Lord Justice Etherton
and
Lord Justice Elias
Case No: A2/2010/2085
UKEAT/0546/08/ZT
MR PHILIP COPPEL QC (instructed by the Treasury Solicitor) for the Appellant
MR PHILIP MEAD (instructed by Dean Wilson LLP) for the Respondents
Hearing date: 8 th February 2011
Lord Justice Mummery:
Introduction
The jurisdiction of Employment Tribunals (ET) is statutory, as is the bulk of the law applied by them. The Sex Discrimination Act 1975 (the 1975 Act) expressly delimits the territorial scope of the right not to be discriminated against on the ground of sex. Although the territorial reach of the right not to be unfairly dismissed conferred by Part X of the Employment Rights Act 1996 (the 1996 Act) is not distinctly restricted, the principles articulated by the House of Lords in Serco Limited v Lawson [2006] ICR 250 ( Serco) set implied bounds to its scope of application.
The jurisdictional issues in these appeals differ from those raised when the ordinary courts of this country are asked to exercise jurisdiction in cases with a foreign element in the subject matter of a civil claim or affecting the defendant to it. In these appeals the issues turn on the terms of the legislation by which the employment rights were created, rather than on the operation of common law conflict of laws rules and the Conventions and Council Regulations applicable, for example, to jurisdiction over contract or tort claims.
In employment protection law the territorial limits normally connect to the factor of the claimant's employment or deemed employment at an "establishment in Great Britain." That often depends on where the claimant did his work at the relevant time. The country in which the contract of employment was made or the alleged wrong of unfair dismissal or unlawful discrimination took place are not connecting factors affecting the ET's jurisdiction. In some instances, such as those set out in s.10 of the 1975 Act, it is provided that, in the specified circumstances, employment is "to be regarded as being at an establishment in Great Britain."
The proceedings
These claims for unfair dismissal and sex discrimination were contested by the employer, the Ministry of Defence ( MoD), at a preliminary stage. The grounds of objection were that the claimants entered their contracts of employment outside Great Britain, that the claimants did the entirety of their work outside Great Britain and that their work was done solely to service the international facility in Belgium and the Netherlands at which they worked. Accordingly, it was said that their employment did not fall within the territorial scope of the 1975 Act or under the Serco shade of the 1996 Act, and that the ET had no jurisdiction to entertain the claims, which should be dismissed at this stage.
The claimants are married women who, until they were dismissed, commenced their work and thereafter worked for the MoD wholly outside Great Britain. When they began working in that employment, their respective husbands were armed service personnel employed by the MoD already working at NATO HQs in Belgium and the Netherlands. The claimants' dependent spouse status advantaged them in obtaining employment with the MoD to work in schools which were part of NATO HQs. The MoD dismissed the claimants when their respective husbands ceased to be employed by the MoD as armed service personnel and instead began working at the NATO HQs in a civilian capacity.
This appeal, brought with permission granted by Elias LJ on 7 October 2010, is from the order of the Employment Appeal Tribunal (EAT) (President—Underhill J) dated 29 July 2010. The EAT dismissed an appeal by the MoD from the decision of the ET sent to the parties on 7 October 2008 holding that the claimants Mrs Claire Wallis and Mrs Dawn Grocott had acquired the right not to be unfairly dismissed and that Mrs Wallis had also acquired the right to pursue discrimination claims under the 1975 Act.
It is accepted by the MoD that the ET has jurisdiction to entertain the claims made by Mrs Grocott and Mrs Wallis for breach of contract for failure to pay notice pay. The position taken by the MoD on the statutory claims for unfair dismissal and discrimination is that the country where the claimant was taken on, did all her work and which secured all the benefit of her work (i.e. Belgium in the case of Mrs Wallis and the Netherlands in the case of Mrs Grocott) is where her employment was located and that the legal system of that country is the natural forum for those claims. The MoD is not able to say, in advance of any such proceedings, whether or not it would plead state immunity in proceedings brought by the claimants in the local foreign tribunal.
These cases are of much wider significance to the MoD (and also to the Foreign and Commonwealth Office) than the facts of these cases might indicate. Guidance is sought on issues affecting these and other similar cases. There are bases of various kinds all over Europe and the rest of the world at which the MoD employs very many service and civilian personnel. In some cases locally employed staff are married to members of the serving armed forces of the United Kingdom.
The law
At this stage a bare outline of the law will suffice, leaving discussion of some of the detailed aspects to when I consider the MoD's submissions.
The right not to be unfairly dismissed conferred on employees by Part X of the 1996 Act is not in terms confined to employees working wholly or partly in Great Britain. In Serco Lord Hoffmann, with whom the other members of the Appellate Committee agreed, said that some employees working abroad come within the scope of the 1996 Act, though the circumstances "would have to be unusual." He gave three examples of classes of expatriate employees falling within the scope of the 1996 Act: (i) employees posted abroad to work for the purposes of a business conducted in Great Britain; (ii) employees working in a British political or social enclave abroad; and (iii) possibly other employees having "equally strong connections with Great Britain and British employment law." The MoD says that only class (iii) could possibly apply here, that the connections to Great Britain are not equally strong to those in (i) and (ii) and that the circumstances are not unusual enough to make this an exceptional case for an ET to exercise extra-territorial jurisdiction.
Under the 1975 Act the ET has jurisdiction in the case of discrimination by an employer "in relation to employment by him at an establishment in Great Britain" (s.6(1) and under s.10 "employment is to be regarded as being at an establishment in Great Britain") in specified circumstances none of which apply here, i.e. if the employee does his work wholly or partly in Great Britain or, in the case of work wholly outside Great Britain, the employee is ordinarily resident in Great Britain and works for the purposes of a business carried out by the employer at an establishment in Great Britain.
However, Mrs Wallis asserts against the MoD, as an emanation of the State, directly enforceable rights of equal treatment under the Equal Treatment Directive (76/207/EEC), as consolidated and updated in 2006/54/EC (the Directive). She relies on Bleuse v MBT Transport Ltd [2008] ICR 488 and Duncombe v Department of Education and Skills [2010] ICR 815, in which the judgment of the Supreme Court is pending, for the proposition that the EU principle of effective judicial protection requires that there should be available in Great Britain a jurisdiction to determine her EU claim derived from the Directive.
More background facts
The MoD employed Mrs Wallis as a part-time Library Assistant in the British Section of the International School attached to SHAPE in Belgium. SHAPE is an international military headquarters staffed by military personnel from NATO member states, including the United Kingdom. Legal relations there are partly governed by the NATO Status of Forces Agreement, 19 June 1951 (SOFA) made between the parties to NATO regarding the status of their forces. For the purposes of SOFA and within the meaning of Article 1, Mrs Wallis was a "dependent" who was treated as a "locally engaged civilian" who was a member of "the civilian component." The "civilian component" comprise "civilian personnel accompanying a force of a Contracting Party in the employ of an armed service of that contracting Party." The court was taken through the detailed provisions of SOFA as background to the appeal. Under Article IX.4 local civilian workers employed by a force or civilian component are not regarded as being members of that force or civilian component. It was not suggested that the issues on the appeal turn on the application of SOFA.
Mrs Grocott was employed by the MoD as School Secretary within the British Section of the Armed Forces North International School attached to the Joint Forces Command Headquarters (JFC) at Brunssum in the Netherlands. It is an international military headquarters staffed by military personnel from NATO member states, including the United Kingdom. For the purposes of SOFA she was also a "dependent" and was treated as a "locally-engaged civilian" who was a member of "the civilian component."
Their respective husbands were serving members of the...
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