United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BRYAN ROGERS (Representative)
For the Respondents	MR BEN COLLINS (of Counsel) Instructed by: Treasury Solicitor's Department One Kemble Street London WC2B 4TS


 


SUMMARY

UNFAIR DISMISSAL – Exclusions including worker/jurisdiction

An Employment Tribunal was entitled to find that section 94(1) did not apply to the wife of a serving soldier who was employed to manage a children's play area in what was generally a NAAFI complex in Germany, where she was herself a German national, engaged to work wholly in Germany under an (oral) contract made in Germany for a trust which though linked to the Armed Forces operated wholly in Germany. Such a case should be approached as a matter of principle, and not by extrapolation from the facts of decided cases from categories such as set out in Burke. A decision of an ET which correctly set out the principles, and exercised its judgment as to whether the connection of the employee and employment outside the UK with Great Britain and British employment law was one of those exceptional cases in which it was sufficiently close, deserved considerable respect. The ET was entitled in the present case to reach the view it did.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

Introduction

1. This appeal concerns a German national employed to work wholly in Germany under a contract made in Germany orally for an employer based in Germany, to be paid in euros, whose work was on a site to which, according to the Tribunal, anyone in Germany could have had access. She claimed to be entitled to pursue an unfair dismissal claim in England. Given both those facts and the additional one that she was offered the chance to have British citizenship and chose to reject it, and that the applicable principle that determines the jurisdiction of a Tribunal to hear claims of unfair dismissal will "always depend on whether it can be held that Parliament can reasonably be taken to have intended that an employee in the Claimant's position should have the right to take his claim to an employment tribunal" (see paragraph 32 of the speech of Hope LJ in Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1, reported at [2012] ICR 389), then a decision by an Employment Judge that she was not entitled to bring an unfair dismissal claim in the United Kingdom seems entirely understandable; indeed, any other conclusion might appear perverse.
2. What, then, is the basis of the appeal? The matter has been put differently, and I shall turn to each of the ways in which it has been advanced, in the Notice of Appeal, at a preliminary hearing, in a skeleton argument before me and, finally, in the submissions that Mr Rogers has made on behalf of his wife. But my recitation of the facts has omitted to mention what he centrally relies upon. Though she was a German national who had rejected British citizenship, she was, and is, his wife and as such was present in Germany because he, as a serving soldier, was also present in Germany as part of British Forces Germany.
3. Secondly, her employment was as a key supervisor/manageress of "Jumping Jacks" (a children's play centre) that was situated at the Navy, Army and Air Force Institutes (NAAFI) MAX centre in Sennelager in Germany. Although the premises were an industrial estate and not premises otherwise occupied by the Armed Forces, and although access to the premises was on the Tribunal's findings of fact available to all, Mr Rogers points to the fact that the work she did was very closely related to the Armed Forces. He submits that those who used the NAAFI MAX centre were highly likely to be the serving soldiers or their dependants. He suggests that the work done for Jumping Jacks was work for the Armed Forces and relies upon the fact that the employer was the Garrison Amenities Fund, which was an umbrella charity under which there were various restricted funds, one of which provided for Jumping Jacks. She was managed by a British officer in so far as she was managed at all. She worked in what might be described as a British social enclave despite the ability of German nationals to access it.

The Tribunal decision

4. The Tribunal dealt with those matters of fact. I have restricted myself to its findings of fact in this Judgment, although Mr Rogers today has told me, from his great wealth of experience as a serving soldier in Germany, of a number of details of fact that may well be right but that have no actual reflection in what the Employment Judge decided. The Employment Judge's findings of fact set out great detail about the status of various potential employees. These seem to me of little or no relevance and presumably were included for the sake of completeness. What matters are the findings of actual facts and, with respect to the Claimant's argument, what they do not establish. The matters that are shown but that are negative in showing a close connection between her employment and Great Britain are: first, that she was not an expatriate; second, she was not employed by the Crown nor by the United Kingdom Government nor by the British Forces nor by the NAAFI, even though she was employed by a charity that was closely related to the garrison; thirdly, she did not form part of the civilian component, as it is called, that is recognised under the Status of Forces Agreement 1951 (SOFA) made between the United Kingdom and Germany (indeed, such were the provisions of the Agreement that she could not be); fourthly, she did not work in a wholly British enclave (although the sense that I get from the decision is that Jumping Jacks was likely to be used by the families of British servicemen, there is no actual finding to the effect that they or anyone in particular used it); fifthly, she was not specifically posted abroad, though her husband was; sixthly, there was no agreement in her case that English law or English terms and conditions would apply to her employment; and seventhly, that the post she occupied was, on the Tribunal's findings of fact, not a post for which only dependants of serving soldiers were eligible.
5. The Claimant's case made to the Tribunal is set out at paragraph 33. It is this:

"[…] the Claimant as a dependant had to be employed as a Dependant Employee, or DEP. Accordingly, she was part of the civilian component within the meaning of SOFA and therefore in the circumstances had the right to claim unfair dismissal."

6. Factually, that cannot stand with the Tribunal's setting out of the terms of SOFA, as I have already mentioned.
7. In reviewing the facts, the Tribunal turned to the question of the test to be applied. It drew that from the Supreme Court decision of Duncombe v Secretary of State for Children, Schools and Families [2011] UKSC 36. At paragraph 16 is the quote that the Judge specifically mentioned at his paragraph 38 (that is, his first paragraph 38) that set out the need to be:

"[…] 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."

8. There is no dispute before me as to the appropriateness of that test. Accordingly, the Tribunal applied the right test. It discussed the question of the closeness of the connection and adjudged at the second paragraph 38 that this was not an exceptional case, such as described in paragraph 16 of Duncombe. The Judge set out five particular reasons why he had come to that conclusion. It is unnecessary to repeat them here; they are set out at 38.1 to 38.5.
9. The Claimant sought to appeal. Her appeal raised a rather different approach from that which is recorded by the Tribunal. What Mr Rogers on his wife's behalf sought to rely upon was that the Garrison Amenities Fund was a charity, that the Recreational Act 1958 and the Charities Act 2006 should have – and, he submitted, did – apply to a fund such as the Amenities Fund, and that this demonstrated a closeness of connection between the employer and Great Britain such that, it would follow, according to his argument, that his wife's employment by such a fund inevitably had a closer connection to the United Kingdom than it did to Germany.
10. The answer to that was given by HHJ David Richardson when the matter came before him on a renewed oral application for permission to appeal. He pointed out that it was true of many companies that they had a registered office in the United Kingdom but also operated abroad. The central question in dealing with jurisdiction, from which the other considerations will follow, is where the work was actually performed. In most cases, the mere fact that an employer is British or has a very close connection in Britain is insufficient on its own to mean that the employment of any person working for that company is governed by English law and that Parliament would have intended that any such employee would have a right to complain to an Employment Tribunal in the United Kingdom about their work, wherever it may be on the globe. He, however, having listened to Mr Rogers, refined the issue before this hearing as follows:

"(i) At the NAAFI MAX, so far as I am aware [he was quoting Mr Rogers' words back to him], all the employees were 'civilian component' or dependents of NATO military personnel (in practice, British or dependents of civilian component).

(ii) Local German workers are employed at garrisons but they are employed under specific terms and conditions set out in German. The Claimant was employed in a way which was quite distinct from the way in which local Germans are employed, yet the Claimant was employed by the garrison's Labour Support Unit. No local Germans, so far as I am aware, were employed at the NAAFI MAX site.

(iii) I would also point out that in practice the NAAFI MAX site is only useful to NATO forces, predominantly British Forces.

(iv) I would therefore say that my wife's contract of employment is more closely connected with Great Britain than with Germany. Accordingly under the Rome Convention, see article 6.2(b) her contract is governed by the appropriate UK law and in any event, the requirements of territorial jurisdiction are met."

11. The points made there were answered in the Respondents' notice by the first and second Respondents. They argue that the Claimant could not be civilian component for the reasons I have already mentioned. Secondly, the second paragraph was not to the point because it was accepted at the Tribunal – and, indeed, I should add, it was accepted before me in argument – that the Claimant was not employed by the garrison's Labour Support Unit. As to there being no local Germans employed at the NAAFI MAX site, there is no finding of fact by the Tribunal Judge to that effect, and indeed his findings of fact are such that it would be possible for a German to be employed at that site.
12. The third paragraph was questioned by Mr Collins who appeared for the Respondents; I would not accept that criticism in its entirety – he was pointing out that the Judge had found that the site was accessible to all – since the point made is one of fact and degree. The words "in practice" appear there; one can well understand that may well be the case. However, once again I must deal with this appeal on the basis of the findings of fact made below, and the Judge made no finding as to who in practice regularly used the NAAFI site. The final paragraph is a conclusion from what comes before.

The appeal

13. In his skeleton argument for this appeal, Mr Rogers argued that the Rome Convention would have the result that British rather than German law applied. He drew an analogy between Ministry of Defence v Wallis and Anor [2011] EWCA Civ 231 and this case, arguing that the facts were so similar that his wife should succeed, and made reference to the standing instructions that operated. His conclusion expresses the point made: that the Tribunal is invited to find that the Claimant's case was like that of Mrs Wallis and had a closer connection therefore to Britain.

Discussion

14. First, there is a very great danger in any case in arguing from examples of previous decisions. The jurisdiction of this Tribunal is only available where the Tribunal has erred in law. Such an error is unlikely to be shown by arguing from the analogy of decided cases, at least unless they are exactly the same factually, though even then it might be difficult. What matters is principle, not the way in which in one case or another the application of those principles has produced a particular result. It is for that reason that I would urge Tribunals not to follow the approach set out in Burke v The British Council UKEAT/0125/06. In that case this Tribunal at paragraph 23 identified what it termed "five gateways" to jurisdiction. It is unnecessary to set out what they were for present purposes; the danger, however, was that the Judgment might suggest that those were the categories of cases by reference to which argument would follow; indeed, it followed in the present case. That is an example of arguing by category or by analogy, when it is principle that needs to be determined.
15. The Appeal Tribunal might be forgiven, since the exact identification of principle in this case has proved somewhat elusive to state in sufficiently finite terms to enable an Employment Tribunal to address any case practically. In Lawson v Serco [2006] UKHL 3, Hoffmann LJ recognised that there had to be territorial limits to the application of section 94(1) of the Employment Rights Act 1996, which otherwise might appear to apply to any employment of whoever, by whomever and wherever it might be. He thought it highly unlikely someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Great Britain, but, added, paragraph 37, that would not be enough. In an endeavour to identify the characteristics that the exceptional cases would have in order that the place in which the work was performed would not be determinative of the applicability or non-applicability of British law, he set out some examples. The fact he gave examples therefore might excuse a Tribunal for arguing from example in the cases that followed.
16. However, an early warning as to the dangers of that came in the case of Duncombe. Baroness Hale of Richmond said at paragraph 8 as follows:

"It is therefore clear that the right will only exceptionally cover employees who are working or based abroad [after right to claim unfair dismissal]. 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 a 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."

17. It is to be noted that there is no principle or test of exceptionality; it is recognised, however, that cases in which work done outside the United Kingdom gives rise to the right to claim unfair dismissal within the United Kingdom will in practice be exceptional. I note also the emphasis that must not be forgotten: there must not only be a stronger connection but a much stronger connection, and the connection is not just with Great Britain but also with British employment law.
18. In Ravat the principle was expressed in slightly different words but to the same effect. But what is of importance in that case is the help it gives to an appellate court such as this. In the speech of Lord Hope, speaking for a panel that included Baroness Hale amongst its members, is said this (paragraph 26):

"[…] it is possible on a careful reading of Lord Hoffmann's speech in Lawson to find what he saw as the guiding principles. The question in each case is whether section 94(1) applies to the particular case, notwithstanding its foreign elements. Parliament cannot be taken to have intended to confer rights on employees having no connection with Great Britain at all. The paradigm case for the application of the subsection is, of course, the employee who was working in Great Britain. But there is some scope for a wider interpretation, as the language of section 94(1) does not confine its application to employment in Great Britain. The constraints imposed by the previous legislation, by which it was declared that 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, have been removed. It is not for the courts to lay down a series of fixed rules where Parliament has decided, when consolidating with amendments the previous legislation, not to do so. They have a different task. It is to give effect to what Parliament may reasonably be taken to have intended by identifying, and applying, the relevant principles."

19. The starting point that Lord Hope identified is at paragraph 27:

"It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive, but it is not an absolute rule. The open-ended language of section 94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified."

20. Usefully, as I have indicated, at paragraph 29 Lord Hope said:

"The question whether, on given facts, a case falls within the scope of section 94(1) is a question of law, but it is also a question of degree. […] The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment with Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain."

21. At paragraph 35 Lord Hope added this:

"As the question is ultimately one of degree, considerable respect must be given to the decision of the Employment Tribunal as the primary fact-finder."

22. I have to apply those principles to decide whether this appeal should be allowed.
23. Before I turn to my conclusion, I should deal in a little greater detail with the case of Wallis, for it was that upon which Mr Rogers placed some reliance. He was arguing by comparison, that the facts of that case involved claimants married to serving members of the British Armed Forces who were posted to NATO organisations in Belgium and the Netherlands respectively. Their employment in international schools in those countries as dependants of their husbands was held by a Tribunal to have a sufficiently close connection with Great Britain and British employment law for a Tribunal in the United Kingdom to have jurisdiction. An appeal was dismissed.
24. The factors that persuaded the Court of Appeal to dismiss the appeal were ones of fact. Although Mr Rogers points to the similarity between the situation of his wife and the wives in Wallis being that they, like the Claimant here, were married to a serving officer in mainland Europe, the appeal relied upon a number of other facts that do not apply to the present case. As the headnote makes clear (see page 617 of the report in [2011] IRLR), the successful claimants there were recruited by the Ministry of Defence. They were employed by the Ministry of Defence. The terms of their contract were said to be governed by English law. The posts they occupied were ones for which they were specifically eligible as dependants of serving members of the Armed Forces. They were part of the civilian component of NATO, and the reason for their dismissal was the loss of that status. None of those facts applies to the case here, if the Judge's findings of fact are to be respected. In addition, they appear to have been British citizens, which the Claimant here is not.

Conclusions

25. I have indicated that the matter must be approached as one of principle and not by argument from example. The Tribunal Judge here asked the right question. The result to which he came is not obviously wrong. It was within the broad scope within which he was entitled to exercise his Judgment. The facts do not compel a different conclusion. It follows that on the principles set out most recently in Ravat to which I have referred, this appeal must be dismissed. There is no particular matter of fact that the Judge took into account that is said to be a misapprehension of fact. I give the respect to the Tribunal Judge's decision that Hope LJ calls for at paragraph 35 of Ravat. The Judge was entitled to come to the conclusion he did. In my view, also, for what it what it is worth, he was right in the circumstances of this particular case to do so.
26. Mr Rogers, by way of postscript, is plainly concerned about many aspects of the way in which persons married to serving soldiers are treated so far as employment is concerned. He raised before me a number of interesting arguments and suggested a lack of clarity in many of the arrangements. I have not dealt with those arguments here except to note them, because the purpose of this hearing is to decide this appeal. It is for that reason that I have not dealt with a number of the matters of fact and argument that he has put before me; I simply note his concerns, but it cannot affect the conclusion to which I have come.