United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 477_94_0610

Appeal No. EAT/477/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 October 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J D DALY

MR J C RAMSAY

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MR D S JONES          APPELLANT

SERCO LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr David Jones against a decision of the Industrial Tribunal held at Shrewsbury on 21 December 1993 and 19 March 1994. For the Full Reasons notified to the parties on 21 April 1994 the Tribunal unanimously decided that Mr Jones ordinarily worked outside Great Britain, and that therefore his application for unfair dismissal and redundancy against his former employers, Serco Ltd, failed.

Mr Jones was dissatisfied with that decision. He appealed to this Tribunal by a Notice of Appeal received on 27 May 1994. The purpose of this preliminary hearing is to decide whether or not there is there is an arguable point of law raised by the appeal. If there is no arguable point of law, then there is no purpose served by the appeal proceeding to a full hearing at which the Respondents are represented.

Mr Jones has appeared in person and has made a number of arguments against the correctness of the Tribunal's decision. The case turns on the application of Section 141 of the Employment Protection (Consolidation) Act 1978. That provides that, inter alia, part V of the Act, (the part that concerns the right not to be unfairly dismissed) does not apply to employment where, under his contract of employment, the employee ordinarily works outside Great Britain. There is a provision in slightly differently worded terms concerning redundancy payments - Section 141(3) provides:

"An employee shall not be entitled to a redundancy payment if on the relevant date he is outside Great Britain, unless under his contract of employment he ordinarily worked in Great Britain".

The relevance of those provisions arises in this way. Mr Jones presented an application to the Industrial Tribunal on 2 August 1993, in which he made against his employers complaints of unfair dismissal and unfair redundancy. He set out the relevant circumstances of his employment, as a Field Engineer employed by Serco Services Ltd of Southall, Middlesex, from 9 April 1984 until his employment ended on 31 May 1993. He set out in detail the grounds of his complaint and referred to the performance of duties by him, first in the United Kingdom and then in Turkey and Germany. He explained the basis of his complaint that he had been unfairly dealt with on the termination of his employment.

Serco contested the claim in a Notice of Appearance dated 23 September. The Company put forward the defence that, following the loss of one of its contracts in Germany, a review of staffing needs for the remaining business was carried out. It was established that existing staffing level was no longer justified. A reduction of two positions was required. They referred to the assessment which took place for the selection of those who were to be dismissed. The result of the review led to the selection of Mr Jones.

At the same time as the Notice of Appearance the Company sent a letter to the Industrial Tribunal stating that they believed that Mr Jones ordinarily worked outside Great Britain under the terms of his contract of employment and was not therefore eligible to make a complaint of unfair dismissal under the current legislation.

The Industrial Tribunal heard evidence from Mr Jones after an adjournment of the hearing so that he could assist them with his testimony. They found him to be a reliable and frank witness. They stated that the facts found by them were almost common ground between the parties.

The Tribunal found that the Company was part of a large American group, the Radio Corporation of America, that Mr Jones was offered employment in 1984 following an application in December 1983 and that he was given a contract of employment. He went to work in Turkey after working for some period in this country. He signed a later contract in 1986. For a period in 1986 he returned from Turkey and worked for the Company in Cornwall for a few months after which, in the middle of 1986, he went to work in Germany. It was not in dispute that Mr Jones did not return to England for an interview for the job in Germany. He wanted to go to Germany. The Company needed to have someone to do his type of job there. He remained working in Germany until he was dismissed on the grounds of redundancy in 1994.

Various arguments were raised by Mr Jones about his legal position. The Tribunal noted in an important passage of the decision (paragraph 3) that the administration of Mr Jones's salary was dealt with at the UK base of the Company. The administration was unchanged when RCA took over Serco. Mr Jones was moved, during the course of his employment, from Turkey to Germany. Whilst in Germany he was stationed within the British Military Force. He and his family were subject to British military law and privileges. The letter notifying him of redundancy came from the Personnel Manager at the Headquarters in Great Britain.

The Tribunal reviewed the relevant authorities and stated its conclusions in paragraph 5. The conclusion of the Tribunal was that it had no doubt that Section 141(2) applied to Mr Jones's employment, though that was a decision which the Tribunal reached with a degree of reluctance. Their decision was that he did not ordinarily work in Great Britain under his contract of employment and therefore he was not entitled to complain under the 1978 Act.

What is the point of law which Mr Jones wishes to argue on this appeal? I shall refer in a moment to the points made by him and on his behalf in a written submission by the Directorate of Legal Services in Germany. The question posed by the Section is, "where did Mr Jones ordinarily work under his contract of employment". That is a question of fact. If the answer is that he ordinarily worked outside Great Britain, then the Section applies and he is excluded from complaining of unfair dismissal.

Mr Jones submitted that there is an error of law in the decision of the Tribunal on two grounds. First, the Tribunal did not give sufficient weight to the factual circumstances whereby members of the civilian component, serving with and supporting him with HM Forces in Germany, should be assumed to be inside Great Britain; secondly, insufficient weight was attached to other surrounding circumstances of employment which re-enforce that assumption. He made detailed points about the position of HM Forces in Germany and about the fact that he belonged to the civilian component giving support to those services. He submitted that it could fairly be said that members of the Forces residing in the military bases can continue to be resident in Britain. There was no reason for treating someone in his position, as subject to military law, any differently. He relied on a lot of detailed factors about the connection between him and his employment with the United Kingdom. He paid National Insurance, as required by UK law. He was liable to UK duties. His contract was in English. His personal administration was solely from the United Kingdom. When not working for the Company with the HM Forces abroad he was returned to the United Kingdom. It was his intention always to have his permanent home for his family in the United Kingdom. The redundancy notice, which has given rise to these proceedings, was issued in the United Kingdom.

Those individual points are re-enforced by some further points in the letter from the Deputy Director of Legal Services in Mönchengladbach. The particular points in that letter are that the Industrial Tribunal at Shrewsbury was wrong for a number of reasons. First, reference was made to the County Court Practice which allows Service Personnel to be treated as resident in Britain for divorce hearings and other County Court matters. Secondly, the special status of members of the Forces. Specific reference was made to the numerous well publicised pregnancy claims brought against the Ministry of Defence in Industrial Tribunals. Thirdly, the point is made that, if the Shrewsbury Tribunal is correct, the provision in Section 141 is in contravention of Article 48 of the Treaty of Rome, as it constitutes an indirect fetter on the ability of workers to move in the Community.

We have considered all those arguments and discussed them in detail with Mr Jones. We have sympathy with his position because, if the Tribunal decision is correct, he is not protected from unfair dismissal by his employer in Great Britain and he has told us that his enquiries have established that he is not entitled to any protection under the employment law of Germany. The result would be that he has no protection anywhere against his employer if it treats him unfairly.

Although we sympathise with that position, we have to apply the law laid down by Parliament. Parliament has laid down that complaints of unfair dismissal cannot be brought in the Industrial Tribunals of Great Britain where the employee ordinarily works under his contract of employment outside Great Britain. There will be many people in the same position as, or in a similar position, to Mr Jones working in countries all over the world. Parliament has enacted that, if the work is ordinarily done under the contract of employment outside Great Britain, there is no protection under the 1978 Act against unfair dismissal.

The points made by Mr Jones and by the Legal Directorate are interesting. They show connections with Great Britain in relation to a number of points that might be relevant as to where Mr Jones was resident, where he was domiciled and where he could bring certain other kinds of proceedings. But, in our view, they are all irrelevant to the point in issue, that is where he ordinarily worked. We are unable to find any error of law in the Tribunal decision which was that, as a matter of fact, he ordinarily worked outside Great Britain.

On the specific point that that statutory provision might itself be incompatible to European law, that does not appear from the decision to be a point raised at the Industrial Tribunal. We nevertheless considered it. It appears to us that Article 48 cannot be said to render the provisions of Section 141 incompatible with Community Law. That article provides for freedom of movement of workers within the Community. It is provided that that freedom of movement shall entail the abolition of any discrimination based on nationality between workers of member states. There is no discrimination here based on nationality between workers. In Section 141 the differentiation is not between workers of different nationality, it turns on the actual location of their work under the contract of employment. We are unable to accept the submission that Article 48 impinges on the point of jurisdiction of the Industrial Tribunal.

As we are unable to find a point of law arising from the decision of the Tribunal, there is no purpose in allowing this appeal to proceed to a full hearing. It will therefore, be dismissed.