Case - Ministry of Defence v. Wallis

[2011] ICR 617, Court of Appeal -
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The Employment Appeal Tribunal had the jurisdiction to hear unfair dismissal and sex discrimination claims brought by the individuals who had been employed overseas by the Ministry of Defence as spouses of ministry personnel and under contracts of employment governed by English law as they had a sufficiently strong connection of employment to Great Britain and its unfair dismissal law.

The appellant ministry (M) appealed against an Employment Appeal Tribunal decision that it had jurisdiction to hear unfair dismissal and sex discrimination claims brought by the respondent former employees (W and G).

W and G were married women who commenced their work and thereafter worked for M wholly outside Great Britain until they were dismissed. When they began working in that employment, their respective husbands were armed service personnel employed by M already working at NATO headquarters in Belgium and the Netherlands. W and G's dependent spouse status advantaged them in obtaining employment with M to work in schools which were part of NATO headquarters. Unlike other locally-recruited staff, W and G, as dependents of a member of the British contingent, were employed under a contract governed by English law and on terms giving them rights equal to those that they would have had under English employment law in relation to matters such as their notice period, health and safety, statutory sick pay and maternity leave. M dismissed W and G when their respective husbands ceased to be employed by the MoD as armed service personnel and instead began working at the NATO headquarters in a civilian capacity. The EAT determined that it had the jurisdiction to hear W's and G's unfair dismissal claims because there was sufficient connection with the employment law of Great Britain. The EAT also held that W had directly enforceable rights of equal treatment under Directive 76/207 so that it had the jurisdiction to hear her sex discrimination claim.

M contended that (1) the EAT had not identified any strong connection between the work carried out by W and G at the NATO headquarters and M's business in Great Britain but had instead erroneously relied on aspects of W and G's personal life, namely their spouses' status and the connection of those spouses' employment to Great Britain; (2) the Directive did not have an autonomous, pan-European operation so that it did not confer a directly enforceable right on W who worked entirely out of the United Kingdom.

HELD: (1) It could not be said that to give W and G access to an employment tribunal in Great Britain was a case of "exporting" British unfair dismissal law to a foreign country, or contrary to the principles of sovereignty and equality of states in international law. It was clear that there was a sufficiently strong connection of W and G's employment to Great Britain and its unfair dismissal law. The factors cumulatively connecting W and G's employment to Great Britain were that they were recruited and employed by M and not by the schools where they worked; they were eligible for those posts as dependents of serving members of the armed forces posted by M to work at the NATO headquarters; the terms on which W and G were employed by M were governed by English law; they were employed under conditions providing that they were part of "the civilian component" of NATO, as distinct from locally employed civilians recruited as directly employed labour; they were recruited under M's policy of bolstering the recruitment of UK armed forces personnel to the NATO institutions and the civilian component accompanying armed service personnel; and the related reason for dismissal was their loss of status as members of the civilian component consequent on their husbands' ceasing to serve in the British armed forces. Accordingly W and G were found employment by and with M for a British reason of similar strength and quality to that existing in an employment package of being posted to work overseas or to working in a British enclave overseas, and the tribunal had been correct to find that it had the jurisdiction to hear W's and G's unfair dismissal claims, Lawson v Serco Ltd [2006] UKHL 3, [2006] 1 All E.R. 823 followed and Bryant v Foreign and Commonwealth Office considered (see paras 24, 28-35, 43 of judgment) (2) The tribunal had the jurisdiction to determine W's sex discrimination claim. Any contention that the correct forum for a sex discrimination claim based on directly enforceable rights under the Directive was in the courts of Belgium would amount to a denial of effective judicial protection of a European Union claim arising out of W's employment as it would require her to bring proceedings in respect of her employment rights in two different jurisdictions in the EU in a case in which her claim was based on a Directive that was addressed to all the Member States including the UK. A very unsatisfactory situation would arise, if the contention was correct, in which the tribunal would have jurisdiction to decide whether her dismissal was unfair, but not whether it was an act of sex discrimination, even though her dismissal was the act of discrimination (see paras 36-42, 51, 52).

Appeal dismissed

Counsel for the respondents: Philip Mead

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