Jurisdiction - Unfair dismissal
Ravat v Halliburton Manufacturing and Services Ltd: Supreme Court (Lords Hope, Brown, Mance and Kerr, Lady Hale): 8 February 2012
The appellant employer was one of about 70 subsidiary or associated companies of a US corporation (the parent company) and supplied tools, services and personnel to the oil industry. The respondent employee, a British citizen, was employed by the employer from April 1990 as an accounts manager. Until 1995, the employee worked in London and in March 2003, he accepted a transfer to Libya.
The employer described the employee's status in documentation attached to his employment contract as that of a UK commuter due to the fact that he continued to live in Great Britain and travelled to and from his home to work for short periods overseas. The work that the employee carried out in Libya was for the benefit of a German company which was another subsidiary or associated company of the parent company. A feature of the employee's commuter policy was that whilst the employee was working on a foreign assignment, his terms were such as to preserve the benefits for which he would normally have been eligible had he been working in his home country. He was remunerated on the normal UK pay and pension structure that applied to the employer's home-based employees and was paid in sterling into a UK bank account.
When the employee started working in Libya, he was assured by his manager that he would continue to have the full protection of UK law whilst he worked abroad. He was provided with a copy of a document in which overseas managers were told to contact the employer's human resources team in Great Britain when they were considering action in relation, inter alia, to redundancy. The decision was taken by a finance manager who was employed by another subsidiary of the parent company based in Cairo, to dismiss the employee by reason of redundancy with effect from May 2006.
The grievance hearing, the redundancy consultations and the employee's appeal against his dismissal all took place in the employer's offices in Scotland. The employee complained that he had been unfairly dismissed. In November 2007, the employment tribunal (tribunal) held that it had jurisdiction to consider his complaint on the basis that there remained a sufficiently substantial connection between the employment relationship and Great Britain. That decision was subsequently set aside by the Employment Appeal Tribunal. The employee successfully appealed under section 37(1) of the Employment Tribunals Act 1996 to the Inner House of the Court of Session. The employer subsequently appealed.
The principal issue that fell to be determined was what the correct test was for determining whether an employment tribunal had jurisdiction to consider a complaint by an individual who was resident in Great Britain and was employed by a British company, but who travelled to and from home to work overseas. The employer submitted, inter alia, that the fact that the employee's home was in Great Britain was of no relevance and that all that mattered was the place that he was working. Consideration was given, inter alia, to section 94(1) of the Employment Rights Act 1996 (the act). The appeal would be dismissed.
The starting point in determining whether section 94(1) of the act applied and whether the facts were sufficient to take a case out of the general rule that the place of employment was decisive, was that the employment relationship had to have a stronger connection with Great Britain than with the foreign country where the employee worked. The open-ended language of section 94(1) left room for some exceptions to the general rule where the connection with Great Britain was sufficiently strong to show that that could be justified.
It would always be a question of fact and degree as to whether the connection was sufficiently strong to overcome the general rule that the place of employment was decisive. The question whether, on given facts, a case fell within the scope of section 94(1) was a question of law, but was also a question of degree (see - of the judgment). The reason why an exception could be made in some cases was that the connection between Great Britain and the employment relationship was sufficiently strong to enable it to be presumed that, although the relevant individuals were working abroad, parliament had to have intended that section 94(1) ought to apply to them (see  of the judgment).
On the facts of the instant case, not as much importance would be attached by the court to the fact that the decision to dismiss the employee had been taken by an individual based in Cairo and the fact that, at the time of his dismissal, the operations in which the employee had been working were those of an associated company based in Germany, as would have been done if the company for which the employee had been working had not been a company associated with the employer. All of the other factors pointed towards Great Britain as the place with which, in comparison with any other, the employee's employment had the closer connection.
Whilst neither the proper law of the parties' contract, nor the reassurance given to the employee by the employer about the availability to him of UK employment law could be regarded as determinative, they were nevertheless relevant. The assurances and documentation given to the employee, together with the handling of matters relating to the termination of his employment by the employer's human resources department in Scotland all fitted into a pattern which pointed quite strongly to British employment law as the system with which the employee's employment had the closest connection.
The fact that the employee's home was in Great Britain could not be dismissed as irrelevant. As the question was ultimately one of degree, considerable respect had to be given to the decision of the employment tribunal as the primary fact-finder. The test applied by the tribunal had been whether there was a substantial connection with Great Britain. It would have been better if the tribunal had asked itself whether the connection was sufficiently strong to enable it to be said that parliament would have regarded it as appropriate for the tribunal to deal with the claim.
However, it was plain from the reasoning of the tribunal that it would have reached the same conclusion had it applied that test. Accordingly, the tribunal had reached a conclusion which it had been entitled to reach. Section 94(1) of the act had to be interpreted as applying to the employee's employment and accordingly, the tribunal had jurisdiction to hear his claim (see , - of the judgment). The case would be remitted to the employment tribunal to deal with the merits of the employee's claim that he had been dismissed unfairly (see  of the judgment). Lawson v Serco Ltd  1 All ER 823 applied; Duncombe v Secretary of State for Children, Schools and Families  All ER (D) 138 (Jul) applied. Decision of Court of Session 2010 Scot (D) 10/7 affirmed.
Aidan O'Neill QC and Christine McCrossan (instructed by Lefevre Litigation) for the employee; John Cavanagh QC (instructed by Paull & Williamsons) for the employer.