MR J BOTHAM v MINISTRY OF DEFENCE [2004] UKEAT 0503_04_1211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0503_04_1211Case No Appeal No. UKEAT/0503/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J BOTHAMAPPELLANTMINISTRY OF DEFENCERESPONDENT
Before
Mr Justice Bean Ms J P Drake Mr F MottureDate 12 November 2004
[1]APPEARANCES For the Appellant MR FREDERIC REYNOLD QC (of Counsel) Instructed by: Messrs Dean Wilson Laing Solicitors 96 Church Street Brighton East Sussex BN1 1UJ For the Respondent MRS WENDY OUTHWAITE (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS THE HONOURABLE MR JUSTICE BEAN John Botham, a British national, was employed by the MOD in a civilian capacity in Germany from 1 st February 1988 until his summary dismissal on 30 th September 2003. It is common ground that his contract of employment was governed by the law of England and Wales. His statement of particulars of employment dated 1 st June 1995 describes him as a "UK – based Youth Worker". He paid UK tax on his earnings. It appears that by virtue of the NATO Status of Forces Agreement he was considered to be part of the civil entourage of the British Forces with the result that he could not bring a complaint in the German Labour Court.[2]On 21 st November 2003 Mr Botham submitted an Originating Application to the Southampton Employment Tribunal claiming that his dismissal was both unfair and wrongful. There is no dispute that the Tribunal had jurisdiction over the contractual claim, which was for loss of earnings during the three month period of notice required under the contract save in cases of summary dismissal. However, by a unanimous decision given on 21 st April 2004 and entered in the Register on 11 th May 2004 the Employment Tribunal, under the chairmanship of Mr Ross, decided that it had no jurisdiction to hear the claim for unfair dismissal. Mr Botham now appeals against that decision.[3]The Employment Tribunal held that it was bound by the decision of the Court of Appeal, given on 23 rd January 2004 and now reported in Lawson v Serco Ltd [2004] ICR 204 . Mr Lawson, a British national domiciled in England was employed by Serco, a company registered in England, as a security supervisor on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Lawson had been interviewed in England with a view to appointment, paid in sterling in England, and given a "no tax" coding by the Inland Revenue on the grounds that he worked entirely on Ascension Island. He resigned after 6 months in circumstances which he claimed amounted to constructive dismissal. He did not have the qualifying period of service for an ordinary unfair dismissal or constructive dismissal claim, but it was argued that the requirement for him to work long hours endangered his health and safety and infringed the Working Time Regulations. An Employment Tribunal dismissed his Originating Application on the grounds that since he was employed wholly outside Great Britain it had no jurisdiction to hear the complaint. This Appeal Tribunal (His Honour Judge Altman presiding) allowed his appeal holding that the only limit on unfair dismissal jurisdiction was that the employer must reside or carry on business in England and Wales, thus enabling service to be effected here. The Court of Appeal allowed the employer's appeal and restored the Decision of the Employment Tribunal.[4]Until section 32(3) of the Employment Rights Act 1999 came into force, Employment Tribunals had no jurisdiction to consider a complaint of unfair dismissal "where under the employee's contract of employment he ordinarily works outside Great Britain"; so it had been provided by Section 196(2) of the Employment Rights Act 1996 , a consolidation Act re-enacting provisions dating back to the Industrial Relations Act 1971 . In Carver v Saudi Arabian Airlines [1999] ICR 991 the Court of Appeal held that it was bound by two of its previous decisions to hold that the question raised by section 196(2) had to be determined by reference to the position as it appeared at the date of the contract of employment from the relevant expressed or implied terms of the contract. This "contract test" was widely seen as both artificial (since it required emphasis to be placed on the terms of a contract which might have been signed many years previously and bear no relation to the state of affairs at the time of dismissal) and in some cases potentially unjust. The Court of Appeal in Lawson accepted that "the wording of the section, as construed in the Carver case, and the resulting exclusion from protection of employees who may have worked for some years in Great Britain, contributed to the decision to repeal the section" [paragraph 26 of the judgment of the court].[5]It was clear that the repeal of Section 196 of the 1996 Act abolished the contract test; it was less clear what was to take its place. In Jackson v Ghost Ltd [2003] IRLR 824 , this tribunal, His Honour Judge Peter Clark presiding, held that the employment must have had a sufficient or substantial connection with this country to found jurisdiction; and in Financial Time Ltd v Bishop (25 th November 2003, unreported) another division of this tribunal, His Honour Judge Burke QC presiding, came to the same conclusion. If it were open to us to follow these decisions we would see considerable attractions in their approach.[6]But it is not open to us. In Lawson v Serco Ltd the Court of Appeal firmly rejected the sufficient or substantial connection test along with the "base test" (see Todd v British Midland Airways Ltd [1978] ICR 959) and the suggestion of almost unlimited jurisdiction derived simply from service of proceedings in Great Britain. They held as follows:
"8. In our judgment, consideration of this issue must start with the Section in the 1996 Act creating the statutory right relied on. This case is concerned with the statutory right in Section 94(1) of the 1996 Act not to be unfairly dismissed. Section 94(1) provides: "an employee has the right not to be unfairly dismissed by his employer"
. The question is: what are the employments covered by the section? The answer in our judgment is straightforward though it may be difficult to apply in some cases: employment in Great Britain. 22. We are in no doubt that the employment tribunal had no jurisdiction to consider a claim for unfair dismissal by the applicant. On the evidence he was not employed in Great Britain within the meaning of Section 94(1) of the 1996 Act. He was employed on Ascension Island however strong were his and his employers' British connections. The test applied by the appeal tribunal is not the correct one. Save where there is expressed provision to the contrary, the act covers employment in Great Britain – that is its "legislative grasp". 28. We accept the need for a degree of flexibility in applying the test. The Posted Workers Directive provides protection in a jurisdiction visited. Protection in a jurisdiction from which there is a temporary absence is not necessarily excluded and the existence of the Directive points to the need for a degree of flexibility in where the employment is. A dismissal during a single, short absence from Great Britain, for example, would not normally exclude the protection of the 1996 Act. In most cases it will not be difficult to decide whether the employment is in Great Britain; borderline cases will depend on an assessment of all the circumstances of the employment in the particular case. The residence of the parties may be relevant to where the employment is, but the emphasis must be upon the employment itself. That, we repeat, is the legislative grasp of the 1996 Act."[7]It is convenient shorthand, though slightly inaccurate in view of paragraph 28, to refer to the test adopted in Lawson as the territorial test.[8]Mr Botham, like Mr Lawson, was employed wholly outside Great Britain. The factual complexities of cases such as Carver , and the nuances in paragraph 28 of Lawson , do not arise. Mr Botham's case is indistinguishable from Mr Lawson's. Unfair dismissal jurisdiction in Mr Botham's case is excluded by the territorial test.[9]Mr Frederic Reynold QC, for Mr Botham, sought on three grounds to persuade us that we should decline to follow Lawson , on the basis not that it can be distinguished from Mr Botham's case – since plainly it cannot – but rather that it was "demonstrably wrong and per incuriam". He concedes that if the decision is binding on us the appeal must fail.[10]Mr Reynold drew our attention to Morelle Ltd v Wakeling [1955] 2 QB 389, where Lord Evershed MR, delivering the judgment of a five

judge Court of Appeal, said (at 406):

"As a general rule the only cases in which decisions should be held to have been giver per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis, which is an essential feature of our law, be, in the language of Lord Greene MR, of the rarest occurrence. In the present case it is not shown that any statutory provision or binding authority was overlooked, and while not excluding the possibility that in rare and exceptional cases a decision may properly be held to have been per incuriam on other grounds, we cannot regard this as such a case. As we have already said, it is, in our judgment impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which the judgments were based and to say of it "here was manifest slip or error"
. In our judgment acceptance of the Attorney General's argument would necessarily involve the proposition that it is open to this court to disregard an earlier decision of its own or of a court of co-ordinate jurisdiction (at least in any case of significance or complexity) whenever it is made to appear that the court had not on the earlier occasion had the benefit of the best argument that the researches and industry of Counsel could provide. Such a proposition would, as it seems to us, open the ways to numerous and costly attempts to re-open questions now held to be authoritatively decided".[11]That well known passage was followed in cases such as Rickard v Rickard [1990] Fam 194 at 203 and Anufrijeva v Secretary of State for the Home Department [2002] EWCA Civ 399 (the subsequent appeal to the House of Lords [2004] 1 AC 604 in the latter case does not affect the position). It was dealing with the rare cases in which the Court of Appeal is able to depart from one of its own previous decision. The difficulties in the way of an advocate seeking to persuade a lower court to decline to follow a binding decision of the Court of Appeal are even greater. As Lord Scarman put it in the House of Lords in Duport Steels Ltd v Sirs [1980] ICR 161 at 190, "The keystone of stare decisis is loyalty throughout the system to the decisions of the Court of Appeal and this House."[12]That is sufficient to dispose of this appeal. But in deference to Mr Reynold's sustained argument we should record what his three contentions were and deal with one of them in a little detail.[13]Firstly, Mr Reynold argued that the territorial test is more, not less, restrictive than the contract test which preceded it, not only generally but because the wholesale repeal of Section 196 of the 1996 Act means that certain special categories of case (for example unfair dismissal applications under Section 58 of the 1996 Act by employees who are trustees of pension funds), hitherto firmly within employment tribunal jurisdiction wherever the employee worked, are now subject to the territorial test. Mr Reynold argued that it was "inconceivable" that Parliament, in responding among other things to the Posted Workers Directive (though the Directive does not apply to unfair dismissal), and to the perceived injustice of the contract test as upheld in Carver , should have imposed additional restrictions on the right to bring a complaint. This argument is simply a way of saying that the Court of Appeal in Lawson were wrong, and it is not open to us to accept it.[14]Second, Mr Reynold submits that in Lawson the Court of Appeal failed to have regard to certain aspects of the ministerial statements made in the House of Lords by Lord Simon of Highbury (8 July 1999) and in the House of Commons by Ian McCartney MP (26 July 1999) admissible under Pepper v Hart [1993] AC 593 . However, the Court of Appeal had Mr McCartney's statement before it, indeed referred to it at paragraph 10 of the judgment as confirming the view they had formed as to the mischief at which the repeal of Section 196 was aimed, but they nevertheless concluded that the territorial test was the one to be applied. This argument also, therefore, is one which it is not open to us to accept.[15]Third, Mr Reynold argues that the Court of Appeal did not consider in its judgment the impact of the Human Rights Act 1998, in particular the incorporation into English Law of Article 6 and 14 of the Convention. It appears that no Convention argument was advanced in the Lawson case. Mr Reynold accepts that this last ground of attack is a subspecies of per incuriam. It might, of course, be very different if the Lawson decision had antedated the coming into force of the Human Rights Act; but that is not the position here.[16]We doubt whether it is open to this tribunal to refuse to follow a binding decision of the Court of Appeal or House of Lords given after the coming into force of the Human Rights Act on the grounds that an argument based on that Act or the Convention was not raised in the earlier case, even if this tribunal considered the substantive point to be a sound one. But in the present case we consider, in any event, that the point is not a sound one. Since the litigation may go further we should state our reasons for this conclusion.[17]Article 6 confers the right of effective access to an independent and impartial tribunal for the determination of one's civil rights. It confers procedural rather than substantive rights. There is, for example, no Convention right to be protected from or compensated for unfair dismissal. The distinction between procedural and substantive rights is not always easy to draw, as pointed out in Matthews v Ministry of Defence [2003] 1 AC 1163 to which Mr Reynold made reference. But here, as Ms Outhwaite submits on behalf of the employers, the answer is clear. Mr Botham has no right to make a claim for unfair dismissal. The bar is substantive, not procedural. Apart from the right to bring a contractual claim, which is not in dispute, he does not have a civil right to assert.[18]Article 14 confers protection against discrimination in the enjoyment of other Convention rights: it is not, as Mr Reynold readily accepted, a free standing right in itself. Assuming, contrary to the view we have expressed, Article 6 is engaged by this case. Mr Reynold submits that the territorial test creates impermissible discrimination between employees working abroad and employees working in Great Britain.[19]The original leading authority of the Strasbourg court on the meaning of the words "other status" in Article 14 was Kjeldsen , Busk, , Madsen and Pedersen v Denmark (1976) 1 EHRR 711 , where it was held at paragraph 56 that "status" means a personal characteristic. Mr Reynold relied on the observations of the Court of Appeal in R (Hooper) v Secretary of State for Work and Pensions [2003] 1 WLR 2623 , where Lord Phillips MR giving the judgment of the court, said at paragraph 91:
"The Secretary of State submitted to Moses J, and submits to us, that the difference in treatment of Strasbourg claimants and domestic claimants does not fall within Article 14 because Article 14 only applies to discrimination on the grounds of "a personal characteristic (status)" by which persons or groups of persons are distinguishable from each other": Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711 , 733, para 56. Moses J accepted this submission. Mr Goudie submitted to us that the Kjeldsen case was outdated jurisprudence and referred us to the very recent decision of this court in Michalak's case in support of this submission. We share the view expressed by Brooke LJ in that case [2003] 1 WLR 617 , 628, para 34 that Kjeldsen's case appears to have been superseded by more recent Strasbourg authority. We can see no reason in principle why litigants in the English courts should not be entitled to complain under Article 14 if, on the ground of their status as litigants in that court, they are treated less favourably than litigants before the Strasbourg court in a manner which engages one of the other Convention rights."
[20]It is, however, very doubtful whether these observations, and those in Wandsworth LBC v Michalak to which they refer, can survive the subsequent decision of the House of Lords in R (S and Marper) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196 . That case was a challenge to the policy of the respondent police force, and indeed of other forces throughout the country, to retain, save in exceptional circumstances, fingerprints and DNA samples taken from suspects on arrest even when the suspect was later acquitted or the prosecution discontinued. It was argued that the policy infringed suspects' rights under Article 8 to respect for private life and, contrary to Article 14, discriminated impermissibly between former suspects and other unconvicted persons. Both challenges failed. On the Article 14 aspect of the case Lord Steyn, at paragraphs 48-49 of his speech, said:
"The list of grounds in Article 14 is not exhaustive and necessarily includes each of the specifically proscribed grounds as well as "other status"
. The European Court of Human Rights has interpreted "other status" as meaning a personal characteristic: Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711 , 733, para 56…… On the other hand, the proscribed grounds in Article 14 cannot be unlimited, otherwise the wording of Article 14 referring to "other status" beyond the well established proscribed grounds, including things such as sex, race or colour, would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of Article 14. It is, therefore, necessary to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic within the meaning of Article 14."[21]The distinction drawn by the unfair dismissal legislation, as interpreted in Lawson v Serco Ltd , between employees working in Great Britain and employees working abroad is in our view plainly not discrimination on the grounds of status in the sense of a personal characteristic. Accordingly, even if it were open to us to consider an Article 14 argument, we would reject it.[22]At the conclusion of oral argument we announced our intention to dismiss the appeal for reasons to be given later. On Mr Reynold's application we granted permission to appeal to the Court of Appeal.[23]Mr Reynold informed us that the House of Lords has given leave to appeal in Lawson's case. We note that if the hearing before us had been in the High Court an application could have been made (with the consent of all parties) for a certificate under section 12 of the Administration of Justice Act 1969 permitting a petition to be presented to their Lordships for leave to bring a "leapfrog" appeal direct to the House. The conditions for a certificate set out in section 12(3) appear to be met in this case; but the power applies only in proceedings before a single judge of the High Court or a Divisional Court. We venture to suggest that consideration be given to whether the Employment Appeal Tribunal, which did not exist in 1969, might be brought within the scope of the section.