UKSC 1
On appeal from:  CSIH 52
Ravat (Respondent) v Halliburton Manufacturing and Services Ltd (Appellant) (Scotland)
JUDGMENT GIVEN ON
8 February 2012
Heard on 22 November 2011
John Cavanagh QC
(Instructed by Paull & Williamsons)
Aidan O'Neill QC
(Instructed by Lefevre Litigation)
LORD HOPE, WITH WHOM LADY HALE, LORD BROWN, LORD MANCE AND LORD KERR AGREE
The implied limitation
"I do not say that there may not be others, but I have not been able to think of any and they would have to have equally strong connections with Great Britain and British employment law."
"It is therefore clear that the right will only exceptionally cover employees who are working or based abroad. The principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law. There is no hard and fast rule and it is mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle."
"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."
In para 36, having said that the circumstances would have to be "unusual" for an employee who works and is based abroad to come within the scope of British labour legislation but that he thought that there were some who do, he said:
"I hesitate to describe such cases as coming within an exception or exceptions to the general rule [that section 94(1) applies to persons employed in Great Britain] because that suggests a definition more precise than can be imposed upon the many possible combinations of factors, some of which may be unforeseen. Mr Crow submitted that in principle the test was whether, despite the workplace being abroad, there are other relevant factors so powerful that the employment relationship has a closer connection with Great Britain than with the foreign country where the employee works."
"This may well be a correct description of the cases in which section 94(1) can exceptionally apply to an employee who works outside Great Britain, but like many accurate statements, it is framed in terms too general to be of practical help. I would also not wish to burden tribunals with inquiry into the systems of labour law of other countries. In my view one should go further and try, without drafting a definition, to identify the characteristics which such exceptional cases will ordinarily have."
"In our view, these cases do form another example of an exceptional case where the employment has such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal."
She went on to identify what in para 17 she referred to as a very special combination of factors on which that conclusion depended. They included the fact that the teachers and the wives were employed under contracts governed by English law, which she said must be relevant to the expectation of each party as to the protection which the employees would enjoy.
The decisions below
"Nothing which he says suggests that that is an essential. It seems perfectly conceivable that an employee may have his place of work in another country abroad, but carries it out in a manner or in circumstances where he cannot properly be described as peripatetic or expatriate, and yet be operating in an employment relationship which has a substantial connection with the UK. Prior to coming to this particular case, I have had in mind a British citizen who, for example, works abroad on what is often referred to as a 'rotational system' of working, say, four weeks in Africa followed by three weeks on leave at home with his family in, say, Edinburgh – and so on, following the pattern."
He referred in the next paragraph, by way of analogy, to the oil rig worker who was flown out to the Continental Shelf to work for two weeks and was then flown back to stay at home in, say, Dundee for the next two weeks. He did not become peripatetic merely because the rig he might be transferred to was in the Norwegian sector or was off the coast of West Africa. Having examined all the circumstances peculiar to this case, he concluded in para 54 of his judgment that there remained a sufficiently substantial connection between the employment relationship and Great Britain to enable him to hold that the tribunal had jurisdiction.
"It applied a test of 'substantial connection' with Great Britain and should not have done so. A test of 'substantial connection' falls far short of the criteria inherent in the principles identified by Lord Hoffmann, to which principles I have already referred. It also took account of the proper law of the parties' contract and the reassurances given to the claimant by the respondents about the availability to him of UK employment law, neither of which was relevant."
In paras 37-38 she said that the respondent fell plainly within Lord Hoffmann's third category – the expatriate category, and that, far from there being something more to show that it was appropriate that there should be jurisdiction, there was something less. The respondent was not working for the appellant's business at home, but was working in the operation of a German company and was dismissed by an employee who had his work base in Cairo.
"Since, in my view, the respondent cannot properly be seen as an expatriate employee, this particular observation is not of direct relevance to his situation. However, I consider that what is said comes, perhaps, as close as anything in this judgment to an indication of the kind of connection with Great Britain and British employment law that an employee would require to show to be able to invoke successfully the jurisdiction of an employment tribunal in connection with a claim based upon section 94(1). Thus, the reference to 'strong connections with Great Britain and British employment law' seems to me to be important."
The respondent's case