Labour & European Law Review Weekly Issue 266 26 April 2012
Employees in Great Britain (GB) have the right not to be unfairly dismissed under section 94(1) of the Employment Rights Act 1996 (ERA), but what about employees who work elsewhere? In Ravat v Halliburton Manufacturing and Services Ltd, the Supreme Court said that it was for Tribunals to decide whether there was a sufficiently strong connection between their work and GB to allow a claim of unfair dismissal to go ahead.
Mr Ravat, a British citizen who lived in England, worked for a UK company which was based near Aberdeen. In 2003, when he started working in Libya for a German subsidiary of the company, he was assured that his contract would still be governed by UK law.
He worked on a rota system which involved 28 days in Libya, followed by 28 days at home. The company paid for his travel arrangements and the cost of commuting between his home and workplace in Libya. He was paid in sterling into a UK bank account and he paid UK income tax and national insurance.
The decision to make him redundant in May 2006 was taken by the HR department in Aberdeen, where the consultation meetings and grievance hearing took place. He was paid a redundancy payment in accordance with the ERA.
When he claimed unfair dismissal, the question arose as to whether, following the decision by the House of Lords in Lawson v Serco, the Tribunal had jurisdiction to hear his claim. Their Lordships identified three categories of employees that would fall within the Tribunal’s jurisdiction: individuals working in GB; peripatetic employees ‘based’ in GB; and, in some exceptional cases, expatriate employees.
Decisions of lower courts
The Tribunal decided that although Mr Ravat did not fit within any of the categories set down by their Lordships, there was a “sufficiently substantial connection” between the employment relationship and GB for the Tribunal to hear his claim.
The EAT overturned that decision, saying that the Tribunal should not have applied the test of “substantial connection” and had therefore erred in law.
The Court of Session (the equivalent of the Court of Appeal in England and Wales) overturned that decision, saying that although the Tribunal had applied the wrong test, it had arrived at the correct outcome.
Supreme Court decision
And the Supreme Court agreed. It said that the question for the court to answer in each case was whether section 94(1) applied to that particular case.
It was not for the courts to lay down a series of fixed rules where Parliament had decided not to. Instead their task was to give effect to what Parliament could reasonably be taken to have intended by identifying, and applying, the relevant principles.
The general rule was that the place of employment was decisive. But it was not an absolute rule. It was for Tribunals therefore, to establish as a question of fact, “whether the connection between the circumstances of the employment and 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”.
In this case, the employment Tribunal had reached a conclusion that it was entitled to reach. Section 94(1) had to be interpreted in this case as applying to Mr Ravat’s employment, and the Tribunal therefore had jurisdiction to hear his claim.