Walker v Church Mission Society

The territorial scope of unfair-dismissal protection under Employment Rights Act 1996, section 94(1), is assessed by reference to the employee’s position at dismissal. An employee working abroad may fall within the legislation where posted abroad to work for a business carried on in Great Britain, works in an extra-territorial British enclave, or has equally strong connections with Great Britain and British employment law. The residual category is exceptional. An employee working for an overseas branch or decentralised overseas operation will not ordinarily qualify merely because the employer is based in Britain.

The claimant, employed by the Church Mission Society as a regional manager, worked in Uganda and Kenya on work focused on Sudan. An Employment Judge held that she was working for an overseas branch of a British undertaking and had no jurisdiction to claim unfair dismissal. The claimant appealed, arguing that she was a foreign correspondent of the organisation’s Oxford headquarters or fell within the residual category of expatriate employees with equally strong connections to Great Britain.

The appeal concerned whether the Employment Judge had correctly applied the principles governing the territorial reach of section 94(1).

1. Appeal dismissed. The Employment Judge’s primary findings of fact were not challenged as perverse. The evaluation of those facts against the applicable legal standard was a question of law for the EAT.
2. The relevant principles were those in Lawson v Serco Ltd [2006] ICR 250, accurately summarised in Burke v The British Council UKEAT/0125/06. The recognised gateways included the standard case, the peripatetic employee, the expatriate posted abroad for a business carried on in Great Britain, the British enclave abroad, and the exceptional residual category of an employee with equally strong connections with Great Britain and British employment law.
3. The assessment focused on the position at the time of dismissal. Considerable respect was owed to the first-instance tribunal’s evaluation of the facts, although the lawfulness of applying the legal standard was reviewable on appeal.
4. The claimant was not a foreign correspondent or overseas representative posted abroad to work for a business conducted in Britain. Her work had been deliberately decentralised from Oxford to the African regions, was focused on Sudan, and had been carried out abroad for approximately eight years. She did not fall within the British-enclave category.
5. The residual category supplied no separate basis for jurisdiction because the claimant relied on the same facts advanced in support of the foreign-correspondent argument. The example in Ministry of Defence v Wallis [2011] EWCA Civ 231 was treated as an extension of the enclave category rather than a wholly new residual category. Permission to appeal to the Court of Appeal was refused.

• Employment Appeal Tribunal: Appeal from the Employment Judge’s preliminary hearing decision, with reasons given on 5 November 2010. Appeal dismissed. Permission to appeal to the Court of Appeal refused.