Rogers v The Deputy Commander & Anor

An employee working abroad falls within section 94(1) only exceptionally. The employment relationship must have a much stronger connection with Great Britain and British employment law than with the foreign legal system. The inquiry is fact-sensitive and one of degree; it is not determined by fixed categories or analogies with earlier cases.

On appeal, substantial respect is due to the Employment Tribunal as primary fact-finder where it has directed itself correctly and assessed the relevant connections. A British-linked employer or a connection with British armed forces will not alone establish territorial jurisdiction under Employment Rights Act 1996.

The claimant, a German national and wife of a serving British soldier, was employed in Germany to manage a children’s play centre at a NAAFI MAX complex. Her oral contract was made in Germany, her work was performed wholly there, and she was paid in euros by the Garrison Amenities Fund.

The Employment Tribunal held that section 94(1) of the Employment Rights Act 1996 did not give her a right to claim unfair dismissal in Great Britain. She appealed, relying principally on her status as a service dependant, the Armed Forces connection of the site and an asserted analogy with Ministry of Defence v Wallis and Anor, [2011] EWCA Civ 231.

The central issue was whether her employment had a sufficiently close connection with Great Britain and British employment law to bring it exceptionally within section 94(1).

1. Appeal dismissed. The Employment Tribunal had applied the correct territorial-jurisdiction test under section 94(1) of the Employment Rights Act 1996. It was entitled to conclude that this was not an exceptional overseas-employment case.

2. The governing inquiry, drawn from Duncombe and Ravat, is whether the employment has a much stronger connection with Great Britain and British employment law than with the country where the employee works. The place of employment is ordinarily decisive, although it is not an absolute rule. Exceptionality is a practical consequence of that demanding connection test, not a separate test.

3. Tribunals should apply principle rather than construct fixed jurisdictional categories or reason by factual analogy. The five “gateways” identified in Burke risked encouraging the latter approach. The fact that an overseas employee’s employer has British links does not, without more, establish that Parliament intended an unfair-dismissal right.

4. The claimant’s relevant connections were insufficient. She was not an expatriate, Crown, Government, British Forces or NAAFI employee; she was not part of the SOFA civilian component; she was not employed in a wholly British enclave or posted abroad; and no English-law term applied. Her marriage to a serving soldier and the connection of the amenities fund and site with British forces did not compel a different conclusion.

5. Wallis did not govern the case. Its claimants had material additional connections, including recruitment and employment by the Ministry of Defence, English-law contractual terms, posts specifically for service dependants, and NATO civilian-component status. The Employment Tribunal’s evaluative conclusion therefore deserved the considerable respect due to the primary fact-finder.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the Employment Tribunal’s conclusion that section 94(1) of the Employment Rights Act 1996 did not apply.
• Employment Tribunal: held that the claimant’s overseas employment did not have a sufficiently close connection with Great Britain and British employment law. The citation is not stated in the judgment.