UKEAT/0123/07/DM MR P ASHBOURNE v DEPARTMENT OF EDUCATION & SKILLS & OTHERS [2007] UKEAT 0123_07_2611

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0123_07_2611Case No Appeal No. UKEAT/0123/07/DM UKEAT/0207/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
UKEAT/0123/07/DM MR P ASHBOURNEAPPELLANTDEPARTMENT OF EDUCATION & SKILLS & OTHERSRESPONDENTUKEAT/0123/07/DM MR M J COLLINSAPPELLANTDEPARTMENT OF EDUCATION & SKILLS & OTHERSRESPONDENT
Before
His Honour Judge Peter Clark Dr K MohantyDate 26 November 2007
[1]APPEARANCES For the Appellants MR P ASHBOURNE (Appellant in Person) For the Respondent MR B CARR (of Counsel) Instructed by: The Treasury Solicitor - Employment Team One Kemble Street London WC2B 4TS SUMMARY Unfair Dismissal: Exclusions including worker/jurisdiction Fixed Term Regulations Teachers employed by DfES working wholly abroad in European schools. Whether Employment Tribunal has jurisdiction over unfair dismissal and fixed-term employment claims. Serco principles applied in each case. HIS HONOUR JUDGE PETER CLARK These conjoined appeals raise once again the question of the territorial limitation to be applied to the right of employees not to be unfairly dismissed provided by s94(1) of the Employment Rights Act 1996 (ERA); additionally we are being asked to consider whether any different result obtains in relation to the protection afforded to employees by the provision of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (FTER), passed to implement Council Directive 1999/70/EC into domestic law. Background[2]The Appellants, Mr Ashbourne and Mr Collins, were two of five Claimants who brought complaints of unfair dismissal, and in the case of these Appellants, breach of FTER against the Respondent, the Department for Education & Skills (DfES) before the London South Employment Tribunal. A preliminary hearing before a full Tribunal chaired by Mr M Houghton considered the issue as to whether the 'legislative grasp' of the protection claimed extended to the Claimants. By a reserved judgment with reasons dated 18 December 2006 that Tribunal found that it did not. Against that judgment these Appellants now appeal. The Facts[3]The Respondent does not directly employ teachers, with one exception. That is to fulfil the UK Government's obligation to supply teachers to the European schools (ES) which provide education to the children of EU officials. Thirteen ES are to be found in Belgium, Germany, the Netherlands, Luxembourg, Italy, Spain and the UK (Culham School). These schools are governed and administered according to the terms of the 1994 'Convention defining the statute of the European Schools' ('the ES Convention'), a community treaty within the meaning of s1(2) of the European Communities Act 1972 , by an international governing body consisting of twenty-five representatives from the EU member states and the EU Commission, together with staff and parent representatives. Funding is provided principally by the European Commission and by individual member states paying national salaries of teachers assigned to the schools. In addition, teachers also receive a supplement paid by ES to equalize their salaries.[4]Most member states, who employ teachers directly, second teachers to the ES, who then return to their national employment at the end of their period of secondment. A minority, including the UK, which do not directly employ their state sector teachers, are required to specially recruit teachers in order to meet the obligation to provide their share of teachers to ES.[5]The recruitment exercise conducted by the Respondent involves advertising, receiving applications, short listing, interviews and offers of employment. Some applicants hold teaching positions in the UK; others are based abroad. Normally an appointment is for a maximum of nine years by way of successive fixed term contracts following completion of a two year probationary period.[6]The Appellants were recruited through this process. Mr Collins' employment commenced on 1 September 1994; Mr Ashbourne's on 1 January 1995. Mr Collins completed nine years service; Mr Ashbourne ten years and two terms. That service was wholly outside GB; Mr Ashbourne worked in the ES in Brussels, Mr Collins in Bergen. Following the expiry of their last fixed term contract neither was offered further employment by the Respondent.[7]Both Appellants were originally recruited in London to work wholly outside the UK. Neither worked at Culham School. Although they worked wholly outside GB throughout their employment they remained domiciled and ordinarily resident in the UK. The Tribunal found that, in the case of Mr Ashbourne, the Respondent expressed the view that he was to be treated as a Crown civil servant while serving in the ES in Brussels for the purposes of registering as an overseas elector. UK assigned European teachers were regarded as having that status for the purposes of determining the nationality of children born to them while serving abroad.[8]Whilst the Appellants were accountable locally at their schools to the School Director, their ultimate line manager in matters of discipline was Mr Murray of the Respondent and overall responsibility for the decision to renew their fixed term contracts lay with the Respondent. The Appellants' contracts of employment expressly provided that the contract was governed by English law and conferred exclusive jurisdiction on the English courts. Lawson v Serco[9]The territorial reach of unfair dismissal and other statutory employment protection has taken a number of turns over the years. We do not intend to revisit the history. Following the repeal of s196 ERA that Act has been silent on the question of its territorial scope. Under the former s196 the right to unfair dismissal protection excluded cases in which the employee ordinarily worked outside GB. That formula has not been replaced in the ERA since its repeal by the Employment Relations Act 1999 .[10]Various attempts were made judicially to fill the void, the issue ultimately reaching the House of Lords in three conjoined appeals under the lead title of Lawson v Serco Ltd [2006] IRLR 289 . The leading speech delivered by Lord Hoffmann, with which the other members of the Committee agreed, represents the current statement of principle to be applied by tribunals when considering the reach of unfair dismissal protection.[11]We note that the application of the Serco principles has been considered by the EAT on at least three occasions: in Leslie Anderson v Stenna Drilling (UKEATS/0080/04/RN. 17 August 2006. Lady Smith sitting alone); Burke v The British Council (EAT/0125/06 and other appeals. 14 December 2006. HHJ McMullen QC presiding) and Williams v University of Nottingham (2007) IRLR 660 , 26 June 2007, Wilkie J presiding).[12]In Williams the EAT concluded that the Serco principles applied equally to a claim of discrimination under the Disability Discrimination Act 1995 (DDA), as amended. In common with certain other discrimination statutes the DDA expressly addresses the geographical reach of its protection. It applies to employment at an establishment in GB or, where the employee works wholly outside GB but:(a) the employer has a place of business at an establishment in GB(b) the work is for the purpose of the business carried on at the establishment and(c) the employee is normally resident in GB at certain times.[13]FTER follows the ERA model. It is silent as to its geographical reach. The Employment Tribunal's reasoning[14]The determination of the preliminary issue in the present case was delayed until after Serco had been decided in the House of Lords. Accordingly this Tribunal had the benefit of Lord Hoffmann's guidance when deciding the issue.[15]It drew no distinction in the approach to be taken to the question under ERA and FTER, holding that the Serco principles applied equally to both heads of claim (Reasons paragraph 35).[16]Applying that guidance to the facts as found the conclusion section of the Tribunal's reasoning is to be found at paragraphs 30 - 37. Having earlier set out paragraphs 35 - 40 of Lord Hoffmann's opinion, headed 'Expatriate employees', the Tribunal looked for 'something more' (see Serco , paragraph 37). At paragraph 31 of their reasons they considered whether that added ingredient could be said to lie in the Appellants being posted abroad by a British employer for the purposes of a business carried on in Great Britain, the first of Lord Hoffmann's examples of circumstances in which the expatriate employee may be able to rely on the protection afforded by s94(1) ERA.[17]At paragraph 31 the Tribunal said this:
"The "something more" which is necessary may be provided in the case of employees posted abroad by a British employer for the purposes of a business carried on in Great Britain. Before embarking on the analysis of whether the Claimants in this case can be said to fall within that category we remind ourselves that the issue that we are dealing with is not the jurisdiction of this Tribunal over the claims, but whether the Claimants have the right of protection from unfair dismissal by domestic legislation, having regard to the place where they carried out their work. In assessing whether the Claimants can be regarded as posted abroad for the purposes of a business carried out in Great Britain the question is whether they were employed overseas as representatives of a business conducted at home. The Claimants suggest that in carrying out their teaching duties in the European schools outside Great Britain they were furthering the United Kingdom Government's influence in European Union countries. The Tribunal is unable to accept that proposition. In the Tribunal's judgment if the Respondent could be said to be carrying on any business in Great Britain this, it seems to us, must be the business of government and administration. As we have said, the dispute before us has arisen only because the Respondent does not direct employ teachers within the United Kingdom. The Claimants were in the business of carrying out school teaching duties at their respective schools, which cannot be said to have been for the purposes of the Respondent's "business" carried on in Great Britain. Although the British Government via the Respondent has a representative on the European Schools' governing body, to the extent to which the Claimants were supporting any enterprise going beyond their day-to-day teaching duties, it was the overall enterprise of the European Union and the benefits of the mobility of its officials throughout Europe which was being supported by the Claimants' teaching duties or other activities, rather than as a representative of the business carried on in Great Britain by the Department for Education and Skills. Whilst the Respondent undoubtedly has a shared interest together with other member states in the running of the European schools it is, in our judgment, stretching language too far to suggest that they are engaged for the purposes of a business carried on by the Department for Education and Skills in Great Britain. For these reasons we conclude that the Claimants do not fall within the first principle explained by Lord Hoffmann under which expatriate employees can be regarded as falling within territorial grasp of section 94(1)."
[18]The Tribunal then went on to find that the Appellants' employment did not fall within the second of Lord Hoffmann's expatriate examples, employment in an extra-territorial British enclave abroad (see, on the facts, the cases of Lawson and Boltham v Ministry of Defence ) (Reasons paragraph 32) nor into any residual category of the sort postulated without being specifically identified by Lord Hoffmann ( Serco paragraph 40). (Reasons paragraph 34). Appeals to the EAT[19]It is axiomatic that appeals to the EAT lie on points of law only. ( Employment Tribunals Act 1996 s21(1)). In the course of his speech in Serco (paragraph 34) Lord Hoffman considered, in the context of the pilots' case of Crofts v Veta Ltd , the extent to which an employment tribunal's conclusion on the legislative reach issue under s94(1) ERA was open to challenge on appeal. He concluded that whilst the question as to whether, on given facts, a case fell within the territorial scope of s94(1) should be treated as a question of law, it is a question of degree on which the decision of the primary fact-finder is entitled to considerable respect. Wilkie J adopted that approach in giving the judgment of the EAT in Williams (paragraphs 25 - 26). These Appeals[20]Mr Ashbourne has presented both his appeal and that of Mr Collins with commendable skill based on a clear understanding of the issues and having carried out considerable research. Mr Collins added his own contribution. Mr Bruce Carr, who appeared on behalf of the employer in the appeal of ADT v Speyer , considered by HHJ McMullen QC's division together with Burke v The British Council , now represents the DfES. We are grateful to each of them for their assistance.[21]In advancing the appeals Mr Ashbourne sets considerable store by the European dimension to the Appellants' employment. He submits that the Tribunal failed properly to take into account the effect of S.I. 1996/267, which implemented the ES Convention.[22]We reject that submission. As Mr Carr points out, when SI 1996/267 came into force s196 ERA still applied. It was therefore Parliament's intention at that time that teachers employed in the ES abroad would not enjoy unfair dismissal protection; they ordinarily worked outside Gt. Britain. In these circumstances we are unable to find that the Appellants are in any better position since the repeal of s196 by reference to the 1996 Regulations.[23]Next it is said that the Tribunal failed properly to investigate the Appellants' connection with the alternative jurisdictions in Belgium (Mr Ashbourne) or Holland (Mr Collins), in assessing the connection with the UK.[24]The Tribunal did consider the point, particularly by reference to Mr Collins, who had consulted a Dutch lawyer as to his position and had been advised that "it was very highly likely that the Dutch Courts would certainly consider themselves not competent to intervene in an English legal matter". The Tribunal observed (Reasons paragraph 22):
"It is impossible for this Tribunal to determine whether or not the advice received by Mr Collins was correct because the point was never tested."
As Mr Ashbourne points out, the Tribunal did not thereafter return to the issue later in their reasons.[25]We think that Mr Carr provided the answer to this submission by reference to Lord Hoffmann's opinion in Serco (paragraph 36) where he said; "I would also not wish to burden tribunals with inquiry into the systems of labour law of other countries." No doubt this Tribunal had that dictum firmly in mind when considering the present case.[26]Thirdly it is said by Mr Ashbourne, in relation to the Appellants' alternative claim brought under FTER, that the Tribunal failed to take into account the fact that the Regulations implemented a European Directive (99/70/EC). It is contended that full implementation of the Directive requires the Tribunal to accept jurisdiction for this claim. We disagree. It seems to us that whether or not the statutory cause of action arises from the implementation of a European Directive is nothing to the point. As Mr Carr submits, the extent of its courts and tribunals territorial reach is a matter for each member state. In short, we are satisfied that the Serco principles apply to FTER in the same way as they apply to s94 ERA.[27]Having rejected the specific grounds of appeal we are left with this rhetorical question posed by Mr Ashbourne. Why should we not be caught by the legislative grasp of s94 ERA?[28]The answer to that question lies firmly in Serco territory. The Appellants worked exclusively abroad. Prima facie their employment was not covered by the UK jurisdiction. They did not fall within either of the two specific Serco exceptions; they were not representatives working abroad for the purposes of a British 'business' conducted at home; nor were the ES at which they taught British enclaves abroad. As to the final, residual category, the Tribunal found that the Appellants could not establish an equally strong connection with Great. Britain and British employment law (Reasons paragraph 33). On this aspect we bear in mind Lord Hoffmann's dictum that this is a question of degree on which the decision of the primary fact-finder is entitled to considerable respect. Looking at the Tribunal's reasons as a whole we are unable to fault their approach in law; they reached a permissible conclusion on the facts as found; consequently these appeals fail and are dismissed.

Cited in 2 later judgments