Williams v University of Nottingham (2007, IRLR 660; IDS 835)
British people who work abroad have to satisfy a territorial test before tribunals can consider their claim. In Williams v University of Nottingham (2007, IRLR 660; IDS 835), the Employment Appeal Tribunal (EAT) said that the same test applies to claims of unfair dismissal and disability discrimination.
Basic facts
Mr Williams had a three year fixed term contract which involved working in Malaysia for a joint venture company - the University of Nottingham in Malaysia (UNMC) - in which the university had a minority shareholding. Although the university paid his salary, UNMC reimbursed it in full.
After a couple of years, difficulties arose between Mr Williams and some of his colleagues and his secondment was terminated by the university in October 2005. He raised a number of grievances but resigned in December before they were resolved. He did not return to England at any time.
Mr Williams then made a claim in an English tribunal for unfair dismissal and disability discrimination, but the tribunal first had to decide whether it had jurisdiction to hear his claim.
Relevant law
Rather confusingly, the government decided in 1999 to repeal section 196 (3) of the Employment Rights Act 1996. This stated 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.”
The issue of territorial jurisdiction was then left to the courts and in 2006, the House of Lords decided in the case of Lawson v Serco that, to bring a claim of unfair dismissal, employees working wholly abroad had to have worked “for the purposes of a business in Great Britain.”
The Disability Discrimination Act 1995, on the other hand, states that employees must be employed “at an establishment in Great Britain.”
Tribunal decision
The tribunal decided to apply the same test to both the claims put forward by Mr Williams. That is, whether he was working for the purposes of a business in Great Britain.
It decided that he was not, as he was based in Malaysia throughout his employment and worked during that time only for UNMC. It said this was a quite separate business from the University of Nottingham in Great Britain.
Mr Williams appealed, arguing that the tribunal should not have applied the Lawson test to his DDA claim.
EAT decision
The EAT agreed with the tribunal, saying that the language used by Lord Hoffmann in Lawson v Serco “is strikingly similar to the statutory language used in anti-discrimination legislation. It would be extraordinary if Lord Hoffmann had intended that the self same words should be given different interpretations depending on the particular context in which those words were being used.”
It concluded that the tribunal had correctly understood the arrangements between the university and what was effectively a franchise operation in Malaysia.
It agreed that the work carried out by Mr Williams was “for the purpose of the separate and distinct business” of the UNMC and not for the University of Nottingham, despite 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.”
It therefore dismissed the appeal.