Serco Ltd. v Lawson

The right not to be unfairly dismissed under Employment Rights Act 1996, section 94(1), applies, absent express contrary provision, to employment in Great Britain. The territorial reach of the Act depends upon Parliament’s legislative grasp of the employment, rather than the employer’s residence, the availability of service, procedural rules, or a sufficient connection with the United Kingdom.

Temporary absence from Great Britain will not normally remove protection. Borderline cases require an assessment of all circumstances bearing on where the employment is, with emphasis on the employment itself. An employee working on Ascension Island was not employed in Great Britain despite strong British personal and contractual connections.

Serco employed Mr Lawson, a British national domiciled in England, as a security supervisor on Ascension Island. He was interviewed and paid in England, but performed his employment on the island. He resigned and brought a claim alleging constructive unfair dismissal and an assertion of rights under the Working Time Regulations.

The Employment Tribunal held that it had no jurisdiction. The Employment Appeal Tribunal allowed Mr Lawson’s appeal, holding that jurisdiction depended on the employer’s proximity to the United Kingdom. Serco appealed. The Foreign and Commonwealth Office participated as an interested party on the territorial application of the legislation.

The central issue was whether section 94(1) of Employment Rights Act 1996 protected an employee whose employment was performed outside Great Britain.

Decision

1. The court allowed Serco’s appeal and dismissed the unfair-dismissal claim. Section 94(1) of Employment Rights Act 1996 confers its statutory right in respect of employment in Great Britain. Mr Lawson’s employment was on Ascension Island and therefore fell outside that territorial scope.

2. The repeal of the former statutory exclusion for employees ordinarily working outside Great Britain did not confer unfair-dismissal rights on employees throughout the world whenever their employer resided or carried on business in England and Wales. Legislation is prima facie territorial. The relevant inquiry is whom Parliament intended the statute to cover: the Act’s legislative grasp is employment in Great Britain.

3. Section 244(1), which states where the Act extends as law, did not itself answer the distinct question of which employments receive the section 94(1) right. Other provisions of the Act, including its express treatment of offshore employment, overseas work in calculating continuity, and mariners, supported the conclusion that express provision was needed for particular employment outside Great Britain.

4. The Employment Appeal Tribunal’s employer-proximity approach was incorrect. Jurisdiction was not determined by procedural rules. The court also rejected a sufficient or substantial connection test and declined to revive the former base test, both of which were unsuited to the statutory regime after repeal of section 196.

5. There remained a degree of flexibility. A dismissal during a single short absence from Great Britain would not normally remove protection. In borderline cases, tribunals must assess all circumstances bearing on where the employment is. The parties’ residence may be relevant, but the focus remains on the employment itself.

• Court of Appeal (Civil Division) Allowed Serco’s appeal and restored the conclusion that the Employment Tribunal lacked jurisdiction to determine the unfair-dismissal claim.
• Employment Appeal Tribunal On 11 March 2003, allowed Mr Lawson’s appeal from the Employment Tribunal and adopted an employer-proximity approach to jurisdiction.
• Employment Tribunal, Watford In a decision promulgated on 30 October 2001, held that it had no jurisdiction to consider the complaint.