Ministry of Defence v Wallis

Employees working wholly abroad may fall within British employment legislation where their employment has a sufficiently special connection with Great Britain. The connection need not arise from an inherent feature of the work. It may arise from the employee’s status as a dependant of British service personnel posted abroad, together with employment on English contractual and statutory terms.

Territorial limits in domestic legislation must, so far as possible, be read compatibly with directly effective rights under an EU directive. That obligation may require qualification of an express territorial limitation where otherwise the right would lack an effective domestic remedy.

The claimants were dependants of members of the British armed forces or civilian component posted to NATO establishments in Belgium and the Netherlands. They were employed by the Ministry of Defence in schools attached to those establishments, under indefinite contracts governed by English law and on terms broadly equivalent to English employment terms. Their employment ended when their husbands’ service postings ended.

An Employment Tribunal held that it had jurisdiction over claims for unfair dismissal and sex discrimination. The Ministry appealed. The central issues were whether the claimants’ overseas employments had a sufficient connection with Great Britain for the purposes of unfair dismissal legislation, and whether the territorial limitation in section 6(1) of the Sex Discrimination Act 1975 required qualification to give effect to directly effective rights under the Equal Treatment Directive.

1. Unfair dismissal. The appeal was dismissed. The territorial scope of section 94(1) of the Employment Rights Act 1996 is governed by the principle identified in Serco Ltd v Lawson [2006] ICR 250. The categories described there are illustrations, not a closed list or precise statutory rules.
2. An employee working wholly abroad may nevertheless come within British employment legislation where exceptional features create a special connection with Great Britain. The necessary connection need not be an inherent feature of the work. Here, the claimants qualified for their jobs only because they were dependants of members of the British military or civilian component posted abroad. They were employed on English terms, under English law, and on conditions materially different from those applicable to locally employed civilians. Those features supplied the required connection.
3. The case was materially different from ordinary locally recruited employment, such as that considered in Bryant v Foreign and Commonwealth Office [2003] UKEAT 174, and from the employment considered in Duncombe v Department for Education and Skills [2010] IRLR 331.
4. Sex discrimination. On the ordinary construction of sections 6(1) and 10 of the Sex Discrimination Act 1975, the Tribunal had no jurisdiction because Mrs Wallis worked wholly outside Great Britain and did not satisfy section 10(1A). However, the domestic legislation had to be construed, so far as possible, to give effect to directly effective rights under the Equal Treatment Directive.
5. Following Bleuse v MBT Transport Ltd [2008] IRLR 264 and the approval of that principle in Duncombe [2010] IRLR 331, the territorial limitation had to be qualified where its ordinary application would deny an effective domestic remedy for an EU-derived right. The same reasoning applied to the sex discrimination claim.
6. The appeals were dismissed.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s preliminary jurisdiction decision was heard de novo and dismissed.
• Employment Tribunal: At a pre-hearing review on 5 September 2008, the Tribunal held that it had jurisdiction to determine the claimants’ unfair dismissal claims and Mrs Wallis’s sex discrimination claim. Reasons were sent on 7 October 2008.