United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 448_94_2106

Appeal No. EAT/448/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21st June 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS C HOLROYD

MS D WARWICK

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MR ROGER JEPSON          APPELLANT

WIMPEY GROUP SERVICES LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR SIMON MEDLAND

(of Counsel)

Paul Booth

Messrs. Baxter Carfield

13 Station Street

Huddersfield

HD1 1LY

For the Respondents MISS C M SUNLEY

(Solicitor)

Wimpey Group Services Limited

27 Hammersmith Grove

London

W6 7EW


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Leeds on 4th March 1994. In extended reasons notified to the parties on 25th March 1994 the Industrial Tribunal expressed the unanimous view that the applicant, Mr R Jepson, was an employee who ordinarily worked outside Great Britain and was thereby excluded from bringing a claim for unfair dismissal before the Industrial Tribunal. In consequence of that ruling the Tribunal dismissed Mr Jepson's claim.

Mr Jepson appealed by a Notice of Appeal dated 4th May 1994. The grounds of appeal were that the Tribunal had erred in law in directing itself as to the legal effect of a number of earlier authorities and erred in having found that Mr Jepson was employed under one contract, not finding that, as this was the contract under which he served when he was dismissed and under which he had always served, he was entitled to the protection of the relevant parts of the 1978 Act. It was also contended that the Tribunal had erred in law in not finding that Mr Jepson's base was in Great Britain and in placing too much emphasis on the actual length of time that he had worked abroad.

The appeal first came on for hearing before the Appeal Tribunal as a preliminary hearing on 7th September 1994 when it was allowed to proceed to a full hearing on the grounds that there was an arguable point of law.

On the hearing of the appeal today Mr Medland appeared for Mr Jepson, and Miss Sunley for Wimpey Group Services. We are grateful to both of them for the arguments advanced in their skeleton arguments and for the elaboration of those arguments in oral submissions.

We have also been referred to a number of authorities. In order to see whether the submissions of Mr Medland are well founded or whether we should prefer those of Miss Sunley, it is necessary to examine the facts found by the Tribunal and the legal criteria applied by the Tribunal to reach the conclusion that Mr Jepson was excluded from the employment rights under the 1978 Act.

The proceedings were started by Mr Jepson when he presented an originating application to the Industrial Tribunal on 14th September 1993. He claimed that he had been unfairly dismissed from his position as a engineer by Wimpey Group Services Ltd by whom he claimed to be employed since 10th October 1988 till 1st July 1993.

In the details of his complaint he said that from 5th October 1992 he had worked for Wimpey Group Services at a site in Oman. On 1st May 1993 he was given two months notice that his employment in Oman would cease on the 1st July 1993, and that he would be repatriated to the United Kingdom. Despite his requests no alternative work was provided. On 23rd June 1993 he was informed that his employment would cease when he left Oman on 1st July 1993.

He was not informed of the reason for his dismissal until 26th July 1993. He was then informed through his solicitors in a letter from the associated company of Wimpey Group Services that his marine experience had been found to be lacking, a matter which he disputes. He says he was given no prior warnings.

The case was contested by Wimpey Group Services. They disputed the dates of employment relied upon by Mr Jepson. They said that the correct dates were 5th October 1992 to 1st July 1993. In the details of their Notice of Appearance dated 25th October 1993 they took a jurisdictional point.:

"The Originating Application is resisted on the issue of jurisdiction as the Applicant ordinarily under his Contract of Employment worked outside Great Britain. Consequently a preliminary hearing on that issue of jurisdiction is requested in the circumstances of the Applicant's termination of employment being outwith the jurisdiction of the Industrial Tribunal."

They set out other grounds on which they contested the claim. It is unnecessary to deal with those on this appeal, since, as requested by Wimpey Group Services, a preliminary issue on jurisdiction was determined at the hearing of the Industrial Tribunal on 4th March 1994.

The question for decision is governed by the provisions of Section 141(2) of the 1978 Act. That provides that Part V of the Act does not apply to employment where under his contract of employment the employee ordinarily works outside Great Britain. Part V of the 1978 Act contains provisions relating to unfair dismissal.

The question posed by the statute is: did Mr Jepson ordinarily work outside Great Britain under his contract of employment?

It is common ground on the authorities that the relevant date on which that question should be asked is the date of dismissal. That is supported by in the case of Weston v Vega Space Systems Engineering Ltd [1989] IRLR 429 at paragraph 7. The Employment Appeal Tribunal, in a judgment given by Garland. J, said:

"... that an employee only `ordinarily works' under the contract subsisting at the time of the relevant dismissal, and it is the contract, not the employment, to which s.141(2) is directed. ..."

It is necessary to ascertain the contractual position at the date of dismissal. Prima facie the contract current at that date is the one dated 5th October 1992 made between Wimpey Group Services Ltd and Mr Jepson. That is the contract under which Wimpey gave notice of termination on 1st May 1993, saying to Mr Jepson:

"I write to advise you that in accordance with the provisions of Clause 2 (a) of your Service Agreement dated 5th October 1992 we hereby give you eight weeks notice of our intention to terminate the Agreement."

The agreement of 5th October 1992 is a six page document with a schedule attached. It covers practically every aspect that one would expect to be covered in conditions and terms of employment. The important provisions are these:

"1 ENGAGEMENT

(a) The Company engages the Employee and the Employee undertakes to serve the Company in the MIDDLE EAST (hereinafter referred to as the "the Zone of Operations") as the Company may desire the services of the Employee in the capacity of CHIEF ENGINEER for the performance of which work the Employee represents that he is fully qualified, or in such other capacity as may from time to time be required by the Company or by any person duly authorised by the Company.

(b) This agreement shall commence as from the date of departure of the Employee from the country of engagement, which date is 05/10/92.

(c) The employee agrees at the Company's request to work in accordance with the provisions of this Agreement for any Company, partnership or venture or Contractors to any company, partnership, or venture which is performing construction or other work in the Zone of Operations. In this event the Employee shall be under the supervision of and shall comply with all the reasonable orders and directions of such other Company, partnership or venture."

Clause 2 contains provisions for Termination by Notice. Under that it is expressly agreed that the date of commencement of employment is 10th October 1988. That is agreed for the purpose of calculating the period of notice which Mr Jepson would be entitled, four weeks notice.

There are also provisions which cover Pension Rights. It is relevant to look at clause 16 which provides:

"If at the date of this Agreement the Employee is a member of the Wimpey Staff Pension Scheme, the Wimpey Pension Fund or the Second Wimpey Pension Fund all benefits and obligations of such relevant Scheme or Fund shall continue to apply to the Employee during employment hereunder."

On reading Section 141(2) and the contract, the answer to this question looks straight forward. Under that contract Mr Jepson was engaged to work and undertook to serve the employer in the Middle East. That was his contract of employment at the date of the dismissal. Under the contract he ordinarily worked outside Great Britain and was therefore excluded from employment protection rights. That simple approach is in line with the authorities, notably those decided in the Court of Appeal and binding on this Tribunal. In

A Wilson v Maynard Shipbuilding Consultants A B [1977] IRLR 491 it was held that the starting point for answering the question posed by Section 141(2) is the express or implied terms of the contract current at the date of dismissal. It is clear from paragraph 10, 11 and 12 of the judgment of the Court of Appeal that prima facie earlier contracts which later contracts have superseded are not relevant to this question. It is the current contract at the date of dismissal which matters. The important of the express term as to place at work is emphasised in a number of passages, in particular in paragraph 23:

"If the contract by its express or implied terms requires that the employer should do his contractual work wholly, or substantially wholly, in Great Britain, the answer will normally be simple. So, conversely, if under the contract the contractual work has to be carried our wholly or substantially wholly outside Great Britain. This will dispose, quite simply, of many cases."

The Court of Appeal went on to deal with the more difficult question of what is to happen if, as in that case, there is an implied term which leaves it to the employer's discretion whether the work should be carried out wholly in Great Britain or wholly outside Great Britain or for some period or periods in one place and for another period or other periods in other places.

In those circumstances the terms of the contract, whether express or implied, do not by themselves provide the answer. It is necessary to consider the employee's base by looking at all the circumstances including e.g. the amount of time actually spent inside or outside Great Britain under the contract.

What is legally wrong with this Tribunal's decision that Mr Jepson ordinarily worked outside Great Britain? We have studied the extended reasons in detail in debate with Mr Medland and Miss Sunley. In our view there is no legal error in this decision.

The Tribunal referred to the Section, to the case of Wilson and to half dozen or so later cases. They stated findings of fact. They said that Mr Jepson has commenced work for work Wimpey Group Services Ltd on 10th October 1988; he was given original terms of employment which made no mention of the ability of Wimpey Group Services to direct to where he should work. It was indicated in the letter of appointment that the employment was simply as an agent on the project at Sellafield. They referred to later agreements under which Mr Jepson agreed to work outside Great Britain. They found that, for the majority of the time between October 1988 and 1st July 1993, the evidence showed that he worked outside Great Britain. The Tribunal said it had to look at the situation at the time of dismissal in order to answer the question; did he ordinarily work outside Great Britain? That is a correct self-direction as to the law. They said at that time:

"... he was working under an agreement dated 5th October 1992 in which he had agreed to work in the Middle East and, in fact, went to work in Oman. He was paid in local currency although, being a United Kingdom national, the basis of the payments was in £ Sterling. He did not pay income tax on those amounts paid in local currency in the Middle East. He was working in Oman for Wimpey Alawi LLC when he was dismissed by that company but that agreement dated 5th October 1992 was made with Wimpey Group Services Ltd and certain matters with regard to pension and periods of notice were preserved."

"It does appear that rather than an "umbrella contract" there certainly seemed to be what might be described as a "safety net contract" with regard to certain terms. What is clear however, is that the place of work stated in that agreement of 5 October was the Middle East and it may be of significance that the clause in an earlier agreement to work in the Middle East, dated 28 March 1989, referring to the entire agreement is excluded or does not appear to be included to be more correct."

They came to the crucial part of their decision where they said this:

" The tribunal finds that what happened here was that the applicant was taken on in Great Britain as an agent at Sellafield and subsequently, that he could not be posted or directed anywhere by the employer and that by agreement he contracted to vary his place of employment from time to time and that those variations of contract between 1988 and July 1993 were variations whereby he agreed to work outside Great Britain. From time to time he returned and when in Great Britain received a statement of main terms and conditions of employment. Clearly when he agreed to work aborad there were more matters to cover than when he worked in Great Britain and therefore the documentation had to be in the form of an agreement, a contract which covered the position much more fully, in particular because of those variations. At the time of his dismissal Mr Jepson was contracted to work in the Middle East. At that time it was quite clear that he ordinarily worked outside Great Britain and even if there was any uncertainty about that, one only had to look at the history of his employment to see that even throughout the period he ordinarily worked outside Great Britain."

Mr Medland argued that there was an error of law in this decision. He submitted that there should be a restrictive interpretation given to Section 141(2). His broad submission was that, looking at the employment history in this case, there was what might be described as a continuing contract, or "global" contract between Mr Jepson and Wimpey Group Services. Under that contract he was required at different times to work in different places. If you looked at the whole of the relationship the answer, he submits, is that Mr Jepson did not ordinarily work outside Great Britain. He conceded, however (correctly, in our view) that, if the 1992 agreement is the only relevant contract of employment, he fails, because, under that contract, the express terms specify a place of work outside Great Britain. He has failed to persuade us that this is one of those cases in which it can be said that the relationship between the parties is governed by one single continuous contract under which directions are given varying the place of work from time to time. In our view, the correct analysis is that there were in this case a succession of separate contracts between the same employer and the same employee. They were distinct contracts, each one coming to an end, and superseded by a later one. The fact that the later contracts carried forward expressly benefits accrued by reason of service under the earlier contracts does not convert this into a "global" contract case. In our view, the answer to the question posed by the facts to the Industrial Tribunal have been correctly answered by the Tribunal. It is a simple case of a contract specifying a place of work outside Great Britain. That contract was terminated by dismissal. At the date of dismissal the terms of the contract defined the place of work of the employee as outside Great Britain. Section 141(2) applies to exclude the jurisdiction of the Industrial Tribunal to entertain Mr Jepson's claim for unfair dismissal.

Miss Sunley has taken us through all the reported cases referred to in the Industrial Tribunal decision. We intend no disrespect to her argument when we say it is not necessary to refer to those cases in order to decide this case. The legal principles are not controversial and have already been summarised.

For all those reasons this appeal is dismissed.