United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr D Tinkler (of Counsel) Instructed by: Messrs J Keith Park & Co Solicitors Claughton House 39 Barrow Street St Helens Merseyside WA10 1RX
For the Respondent	Mr J Algazy (of Counsel) Instructed by: Messrs Mills & Reeve Solicitors Francis House 112 Hills Road Cambridge CB2 1PH


 


SUMMARY

Unfair dismissal – Exclusions including worker/jurisdiction

Disability discrimination – Exclusions/jurisdictions

ET had no jurisdiction to consider unfair dismissal or Disability Discrimination Act claims. The approach to jurisdiction to entertain to unfair dismissal claims outlined in Lawson v Serco is equally applicable in construing the statutory jurisdiction provisions in the Disability Discrimination Act.


 


THE HONOURABLE MR JUSTICE WILKIE

Introduction

1. This is an appeal by Dr Williams against a decision of the Employment Tribunal held at Nottingham between 12 and 14 December 2006 which decided, for reasons sent to the parties on 8 January 2007, amongst other things that his claims of unfair dismissal and disability discrimination were dismissed as being outside the jurisdiction of the Tribunal. In addition there was a claim for breach of contract which was dismissed for the same reason, but that is not the subject of appeal.

The facts

2. The facts of the matter were not substantially in dispute and are as follows. The Respondent is an English university, a charity established by charter. It is governed by its Council and Vice-Chancellor. It awards its own degrees and, in 2000, it decided to set up a joint venture in Malaysia. That body was known as the University of Nottingham in Malaysia ("UNMC"). The vehicle for this joint venture is a Malaysian registered company called the University of Nottingham in Malaysia. The Respondent has, and at all material times had, a minority share holding in the company, the balance of the shares being held by two commercial Malaysian companies. The Respondent receives a financial return of 10% of student fees from UNMC and, in return, provides a number of services. It provides academic control over the courses, modules and examinations, it sets the examinations and it awards the degrees. All courses and degrees at UNMC have to be approved by the Malaysian Approval Authority (LAN). The day to day activities at UNMC are run by UNMC. All its expenditure, including staff salaries, is drawn from the UNMC budget. All the administrative staff, and most of the academic staff, at UNMC are recruited and employed by UNMC. Some of the academic staff, particularly some of the senior staff, are either employed by the Respondent or recruited by the Respondent to work at UNMC. Some, such as the Claimant, are employed direct by the Respondent but are seconded to UNMC, others are recruited by the Respondent but are directly employed by UNMC.
3. The Appellant was employed by the Respondent as a senior lecturer in its business school from 1 September 2003 for a fixed three year term. He was specifically recruited to take up a post at UNMC and his appointment was conditional on his being seconded to UNMC. For technical reasons concerning the issue of his work permit, the agreement seconding him to UNMC was for a period of two years commencing 1 October 2003. Throughout his employment, including the initial month between 1 September and 1 October 2003 and the few weeks at the end of his employment, to which we will return, the Appellant did not do any work in the United Kingdom for the Respondent. His work was entirely carried out in Malaysia.
4. The Respondent's business school is a research led institution. By way of contrast, the emphasis of the UNMC business school is on teaching rather than research. Nonetheless, research is done at UNMC and the Appellant was responsible for significant research whilst he was there. He was the Director of research at UNMC. Some of the research he did was in conjunction with colleagues in Nottingham. The Tribunal found that the Respondent would benefit from research by the Appellant and others at UNMC which is published and which adds to the overall research profile and reputation of the Respondent. When UNMC started taking PhD students they could not be registered in Malaysia as LAN approval had not yet been granted. Accordingly they were registered at the Respondent in the UK. Subsequently, after the Appellant left, once approval had been given by LAN, PhD students were registered in Malaysia. Supervision of PhD students was by staff both in Malaysia and in the UK.
5. The Respondent ensures that the quality standards of the university in Malaysia are equivalent to those in the UK. It is paid a fee for that service and the Respondent prepares in the UK the course and module outlines. It provides the examinations and awards the degrees. One of the facts found by the Tribunal was that when the Appellant was appointed he was told that one of his main duties at UNMC was to maintain the integrity and standards of the Respondent in Malaysia.
6. UNMC has its own board of directors on which the Respondent has minority representation. The Vice-Chancellor of the Respondent is also the Vice-Chancellor of UNMC. The business school at UNMC employs its own director who was in overall charge of the Appellant's employment whilst at UNMC. The Appellant, whilst employed at UNMC, lectured and took tutorials. He was involved in the administration of UNMC from an academic viewpoint and was director of its research. His salary, though paid by the Respondent, was reimbursed to the Respondent by UNMC. His contract contained disciplinary and grievance procedures with the Respondent.
7. The claims for unfair dismissal and disability discrimination arose out of the circumstances in which the Appellant's employment terminated. By September 2005 difficulties had arisen in the employment relationships between the Appellant and certain of his colleagues in Malaysia. On 27 September 2005 a meeting was held in an effort to resolve the problems. At that meeting were the director of the UNMC business school, the director of the Respondent's business school, and the Dean of social sciences of the Respondent, within which faculty the business school of the Respondent is located. It so happened that the Dean of the Respondent's faculty of social sciences had for a time herself been seconded to UNMC and had been in control of the UNMC business school. Unhappily the problems could not be resolved by that meeting and, by letter of 12 October 2005, the Respondent terminated the Appellant's secondment to UNMC and said that he would have to return to take up his duties in Nottingham from 1 November. In fact this never happened. The Appellant raised a number of grievances under the grievance procedure with the Respondent which were considered by the Vice-Chancellor of the Respondent. The Appellant was permitted to remain in Malaysia whilst the grievances he had brought were being considered. He resigned on 5 December 2005, before that process had been completed, without returning to the United Kingdom and without doing any work in Nottingham and remained living in Malaysia.
8. The intention of the Respondent in establishing the joint venture in Malaysia was to improve its profile as a global educational institution. Its publicity material concerning UNMC emphasised the close connection between the Respondent and UNMC. Indeed UNMC was said to be an integral part of the Respondent and the business school was referred to as "one school incorporating both the Nottingham and Malaysian campuses". The Tribunal concluded, on the basis of its findings of fact as to the way in which UNMC was organised and operated, that, in truth, UNMC was not integral to the Respondent but was a franchise operation conducted by a separate entity but where there were close connections and where the Respondent provided services and sought through, amongst others, the Appellant to maintain standards at a level consistent with the Respondent's own standards applicable in the United Kingdom.

The legal issues

Unfair dismissal

9. The Employment Rights Act 1996 is silent on the territorial jurisdiction of section 94 which establishes the right not to be unfairly dismissed. Prior to the repeal of section 196(3) in 1999, there was statutory provision concerning the territorial scope of that right. The right not to be unfairly dismissed did not apply to "any employment where under his contract of employment the employee ordinarily worked outside Great Britain." Once that section was repealed the issue of territorial jurisdiction was left to the courts.
10. The House of Lords in the case of Lawson v Serco [2006] ICR 250 authoritively set out the approach to be adopted by Tribunals in considering the territorial application of section 94. In the leading speech of Lord Hoffman at paragraph 27 he said as follows:

"Since 1971 there has been a radical change in the attitude of Parliament and the Courts to the employment relationship and I think that the application of section 94(1) should now depend on whether the employee was working in Great Britain at the time of his dismissal, rather than what was contemplated at the time, perhaps many years earlier, when the contract was made. I would therefore expect Mrs Carver's case to be decided differently if it came before the courts today. The terms of the contract may be relevant to whether the employee is really working in Great Britain or whether he is merely on a casual visit (for example, in the course of peripatetic duties based elsewhere) but ordinarily the question should simply be whether he is working in Great Britain at the time when his is dismissed."

He then explains that there are "peripatetic employees" and certain expatriate employees for whom the characteristics of their employment relationship are sufficiently "exceptional" to bring them within the scope of section 94(1). At paragraphs 37, 38 and 40 he provides guidance as to who will fall within those exceptional categories. He says as follows:

"37. First, I think that it would be very unlikely that someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Britain. But that would not be enough. Many companies based in Great Britain also carry on business in other countries and employment in those businesses will not attract British law merely on account of British ownership. The fact that the employee also happens to be British or even that he was recruited in Britain, so that the relationship was 'rooted and forged' in this country, should not in itself be sufficient to take the case out of the general rule that the place of employment is decisive. Something more is necessary.

38. Something more may be provided by the fact that the employee is posted abroad by a British employer for the purposes of a business carried on in Great Britain. He is not working for a business conducted in a foreign country which belongs to British owners or is a branch of a British business, but as representative of a business conducted at home. I have in mind, for example, a foreign correspondent on the staff of a British newspaper, who is posted to Rome or Peking and may remain for years living in Italy or China but remains nevertheless a permanent employee of the newspaper who could be posted to some other country. He would in my opinion fall within the scope of section 94(1). The distinction is illustrated by Financial Times Ltd v Bishop 2003 AER D 359, a decision of the Employment Appeal Tribunal delivered by Judge Burke QC. Mr Bishop was originally a sales executive working for the Financial Times in London. At the time of his dismissal in 2002 he had been working for three years in San Francisco selling advertising space. The employment Tribunal accepted jurisdiction on the ground that under European rules it had personal jurisdiction over the Financial Times….but that was not a sufficient ground…The question was whether section 94(1) gave Mr Bishop a substantive claim. Having set aside this decision, the EAT was in my opinion right in saying that the findings of fact were inadequate to enable it to give its own decision. The question was whether Mr Bishop was selling advertising space in San Francisco as part of the business which the Financial Times conducted in London or whether he was working for a business which the Financial Times or an associated company was conducting in the United States; for example, by selling advertising in the Financial Times' American edition. In the latter case, section 94 would not in my view apply. (Compare Jackson v Ghost Ltd 2003 IRLR 824 which was a clear case of employment in a foreign business)…

40. I have given two examples of cases in which section 94(1) may apply to an expatriate employee; the employee posted abroad to work for a business conducted in Britain and the employee working in a political or social British enclave abroad. 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. For the purposes of these two appeals the second of these examples is sufficient. It leads to the conclusion that the appeals of both Mr Lawson and Mr Botham should be allowed."

Disability discrimination

11. Unlike unfair dismissal, the Tribunal's jurisdiction to entertain a claim under the Disability Discrimination Act is provided for expressly by statute and, in particular, sections 4(6) and 68 of the Disability Discrimination Act 1995. They provide as follows:

"Section 4(6). This section applies only in relation to employment at an establishment in Great Britain.

Section 68. Employment…is to be regarded as being employment at an establishment in Great Britain if the employee –

(a) does his work wholly or partly in Great Britain; or

(b) does his work wholly outside Great Britain and subsection (2A) applies.

(2A) This subsection applies if-

(a) the employer has a place of business at an establishment in Great Britain

(b) the work is for the purposes of the business carried on at the establishment; and

(c) the employee is normally resident in Great Britain –

(i) at the time when he applies for or is offered the employment, or

(ii) at any time during the course of the employment."

12. It was common ground at the Employment Tribunal that the Appellant only qualified if sub-section 2A applied. It was also common ground that, of the sub-sections within 2A, both sub-section (a) and (c) were satisfied. Thus the issue was whether (b) was satisfied i.e. did he work for the purposes of the business carried on at an establishment in Great Britain?

The Employment Tribunal's approach

13. The Employment Tribunal concluded that on each of the two issues, namely - jurisdiction to entertain a complaint of unfair dismissal and to entertain a complaint under the Disability Discrimination Act, the crucial issue was whether the Appellant was working for the purposes of a business carried on in Great Britain. It concluded that its approach to the application of that requirement (a statutory requirement in the case of disability discrimination and a common law requirement as described by the House of Lords in relation to unfair dismissal) should be the same in respect of each jurisdiction.
14. It dealt with the application of this concept to the unfair dismissal claim between paragraphs 29 and 34 of its decision. It concluded that the Claimant's employment was not for the purposes of the Respondent's business in the United Kingdom but was for the purposes of the separate and distinct business of UNMC carried on in Malaysia. Having so decided it turned, in paragraph 35, to deal with the disability discrimination claim. It rejected the suggestion that the question whether work was for the purposes of a business carried out at an establishment in Great Britain should be approached any differently from the approach of the House of Lords in Lawson v Serco in respect of jurisdiction to entertain a claim for unfair dismissal Accordingly, for the same reasons they had set out in paras 29-34 they stated that they were satisfied that the Appellant did not bring himself within section 68(2A) so that the Tribunal did not have jurisdiction over his disability discrimination either.
15. In applying the test the Tribunal went through the following steps:

In paragraph 29 it concluded that it was clear in fact that the Claimant worked and was based in Malaysia, he never worked in Nottingham. Had he returned to work in Nottingham in November 2005, as he was told to do, his situation may have been different, but he never did and the Respondent accepted that position whilst his employment continued. The Tribunal concluded, therefore, that he had to be considered as an expatriate employee. It concluded that, as a matter of law and fact, UNMC was a separate and distinct legal body from the Respondent. It accepted that the Respondent had significant areas of control, particularly in relation to academic standards, but it was in no doubt that UNMC was a distinct and separate organisation. It concluded, in paragraph 30, that, notwithstanding what appeared in its publicity material, UNMC was in effect a franchise operation under which UNMC provided the Respondent's education and degrees.

In paragraph 31 it concluded that the Respondent benefited from what UNMC did in a number of ways: it received fees; it had research done; and the success of UNMC contributed to raising the profile and its concept as a global university.

In paragraph 32, however, they concluded that they were satisfied that the Appellant was employed for the purposes of UNMC and not of the Respondent. They said:

"Although he was expected to maintain the standards of the Respondent that was an ancillary part of his role."

They pointed out that employees directly recruited and employed by the UNMC were similarly expected to uphold those standards. They concluded that his prime role was as a senior lecturer to work for and on behalf of UNMC and it was for that which he was recruited.

In paragraph 33 they said as follows:

"We do not consider that the undoubted benefits that his employment brought the Respondent are sufficient to answer the question of whether he was employed for the purposes of the Respondent's business in the United Kingdom."

They then referred to the example given in Lawson v Serco of the case of Mr Bishop with which they concluded this case had strong parallels.

They concluded in paragraph 34:

"That the Claimant's employment, which was never in fact undertaken at the Respondent, was not for the purposes of the Respondent, but was for the purposes of the separate and distinct business of UNMC. It follows therefore that this Tribunal does not have jurisdiction over the Claimant's unfair dismissal claim."

16. As we have indicated, in paragraph 35 the Employment Tribunal, applying the same approach to jurisdiction to entertain a claim for disability discrimination, concluded that it did not have jurisdiction to do so.

The grounds of appeal

Ground 1

17. The Appellant has advanced three grounds of appeal and we are indebted to Mr Tinkler for his helpful skeleton argument and his clear and succinct oral submissions.
18. The main ground is ground 1. That is a ground which principally addresses the claim for disability discrimination. It is said that the Employment Tribunal misdirected itself in law in deciding that, in applying section 68(2A)(b) - namely whether "the work is for the purposes of the business carried on at the establishment" - it should approach this sub-section on the basis that those words meant the same as the phrase used by Lord Hoffman in Lawson v Serco "for the purposes of a business carried on in Great Britain". It is said by the Appellant that the way in which Lord Hoffman described his interpretation of that phrase, and in particular the use of the example highlighted in the case of Financial Times Ltd v Bishop, represents a more restrictive test than that which is properly to be applied in relation to section 68(2A)(b). It therefore follows that, had the Employment Tribunal applied a different test, it would have found that it had jurisdiction to hear the claim under the DDA. In particular, he says that, as long as there was some significant benefit to the Respondent in the UK derived from the work of the Appellant in Malaysia, then the statutory test under the DDA is satisfied even though the stricter test described by Lord Hoffman in the context of unfair dismissal may not be.
19. In support of this contention he has taken us through the legislative history of the jurisdictional provision under the DDA (and other anti discrimination acts) to demonstrate what Lord Justice Mummery said in Saggar v Ministry of Defence 2005 EWCA Civ 413 at para 18 that "the legislative history is one of progressive enlargement of the jurisdiction of the employment Tribunal in cases of discrimination". He also reminds us that the courts have repeatedly stated that, in the context of anti discrimination legislation, jurisdictional provisions should be interpreted "to promote their legislative purpose with as much good sense as their language allows" (see Saggar, paragraph 17). He points out that, at no point in Lawson v Serco, did Lord Hoffman indicate that his words were in any way intended to describe, or impact on, the proper interpretation of the statutory terms giving rise to jurisdiction under the DDA and other anti discrimination legislation. He has suggested that the examples given by Lord Hoffman tend to suggest that he is describing an exclusivity of purpose as being required in order to satisfy the jurisdictional test in unfair dismissal which he was describing which is inimical to the purposive construction called for in construing the jurisdictional provisions of anti discrimination legislation.
20. Mr Algazy, for the Respondent, points out that, although not referred to in the judgment, the legislative provisions of the anti discrimination legislation and the case of Saggar were cited in argument before their Lordships in Lawson v Serco. He points out that the phraseology used by Lord Hoffman is so closely parallel to the statutory terms of section 68(2A)(b) of the DDA that it is a reasonable inference that Lord Hoffman was influenced by that jurisdictional template in dealing, at common law, with this jurisdictional issue. He says that in an era when steps have been taken to ensure that there is consistency of jurisdiction between different pieces of anti discrimination legislation it would be very odd if substantially the same words used at common law to describe jurisdiction in relation to unfair dismissal were to have a different meaning. This is particularly so where, as here, and in many other cases, complaints of unfair dismissal will be run in parallel with complaints about discrimination.
21. In our judgment Mr Algazy is correct in his submissions. The language used by Lord Hoffman in this particular respect is strikingly similar to the statutory language used in anti discrimination legislation. It would be extraordinary if Lord Hoffman had intended that the self same words should be given different interpretations depending on the particular context in which those words were being used. This is the more so where all these phrases are being used in the context of complaints being made in relation to employment matters, before the same statutory Tribunal and where, in many cases, both types of complaint are being run in parallel in the same proceedings. In our judgment, therefore, the Employment Tribunal did not err in law in approaching the interpretation of section 68 of the DDA in a manner which was informed by and was consistent with the way in which Lord Hoffman indicated the same words should be understood in the context of unfair dismissal.

Ground 2

22. The second ground of appeal is more far reaching. It is that the Employment Tribunal misconstrued the factual situation. It failed to recognise the impact of the fact that, by the date of his resignation, the Appellant's secondment to Malaysia had terminated and that his contract of employment required him to work in the United Kingdom. On that basis, it is said, the Employment Tribunal should have concluded that, both in respect of unfair dismissal and in respect of disability discrimination, the Appellant should be treated as if he were working in the UK or had employment at an establishment in Great Britain so as to confer jurisdiction on the Employment Tribunal without consideration of provisions relating to those who did not work in the UK. In our judgment that ground of appeal is misconceived. The Employment Tribunal made it clear in paragraph 29 of its decision that, had the Appellant returned to work in Nottingham in November 2005 as he was told to do, his situation may have been different. But he did not and, furthermore, the Respondent accepted that position by agreeing that he should remain in Malaysia until such time as his invocation of the grievance procedure had run its course. At no time was the Appellant able to say that he had ever worked for the Respondent in the UK. To rely on a contractual requirement for him to work in the UK, even ignoring the fact that the Respondent had waived that requirement for the time being, would be to approach the matter on the basis of contractual entitlement which Lord Hoffman made abundantly clear was inappropriate in respect of unfair dismissal and which is wholly inconsistent with section 68(2A)(b) of the DDA which focus on where work is performed rather than where contractually it could be required to be performed. Furthermore, this does not appear to have been an argument which was raised before the Employment Tribunal as the Employment Tribunal recorded, at paragraph 21, that the parties had agreed that the issue in the case was the proper construction of section 68(2A)(b), a position inconsistent with the argument now being put forward.
23. Accordingly we see no merit in this ground of appeal.

Ground 3

24. The third ground is that, on the assumption that the approach of Lord Hoffman in Lawson v Serco is the appropriate one both in respect of the unfair dismissal and the discrimination claim, nonetheless the Tribunal erred in law in concluding that the Appellant did not satisfy the requirement that he worked for the purposes of a business carried on in Great Britain or that his work was for the purposes of the business carried on at an establishment in Great Britain.
25. The first question is whether this is in truth a question of fact or law. In paragraph 34 of his speech in Lawson v Serco Lord Hoffman said as follows:

"Mr Griffith-Jones said that the Tribunal's conclusion was a finding of fact which the employment appeal Tribunal (and your Lordships house on appeal) had no jurisdiction to disturb. Like many such decisions, it does not involve any finding of primary facts (none of which appear to have been in dispute) but an evaluation of those facts to decide a question posed by the interpretation which I have suggested should be given to section 94(1)…whether one characterises this as a question of fact depends, as I pointed out in Moyna v Secretary of State for Work and Pensions 2003 UKHL 44…upon whether, as a matter of policy, one thinks that it is a decision which an appellate body with jurisdiction limited to errors of law should be able to review. I would be reluctant, at least at this stage in the development of a post section 196 jurisprudence, altogether to exclude a right of appeal. In my opinion therefore, the question of whether, on given facts, a case falls within the territorial scope of section 94(1) should be treated as a question of law. On the other hand, it is a question of degree on which the decision of the primary fact finder is entitled to considerable respect. In the present case I think not only that the Tribunal was entitled to reach the conclusion which it did but also that it was right…. "

26. We accept, therefore, that whether or not the Appellant did satisfy the jurisdictional requirement described by Lord Hoffman in Lawson and set out in section 68(2A)(b) is ultimately a matter of law even though it does involve an evaluation of facts by the Employment Tribunal in order to decide a question posed by, respectively, the statutory and the common law test. On the other hand, being a question of degree, we are obliged, in accordance with Lawson v Serco, to give considerable respect to the conclusions of the primary fact finder.
27. In our judgment the Employment Tribunal cannot be faulted in its evaluation. It set out, meticulously, the various arrangements internal to the Respondent and UNMC, and as between the Respondent and UNMC. It described the nature of the benefits which the Appellant's work elicited for the Respondent, but it also described the work he performed in Malaysia for UNMC. The Employment Tribunal was entitled, in our judgment, to be influenced by the example described by Lord Hoffman in para 38 of his speech in Lawson v Serco and, in particular, to address the question whether the Appellant was working in Malaysia as a part of the business which the Respondent conducted in Nottingham or whether he was working for a business which the Respondent, or an associated company, was conducting in Malaysia. It posed that question and concluded, in our judgment correctly, that his work was for the purpose of the separate and distinct business of UNMC and was not for the purpose of the Respondent notwithstanding the fact that there were certain necessary and consequential benefits accruing to the Respondent from the work performed by the Appellant and others in Malaysia.
28. In our judgment, therefore, the Employment Tribunal did not err in law in coming to the conclusion that it had no jurisdiction to entertain either the unfair dismissal or the disability discrimination claims submitted by the Appellant. It follows that this appeal is dismissed.