Smania v Standard Chartered Bank

The territorial reach of the Employment Rights Act 1996 depends on whether the employment has a sufficiently strong connection with Great Britain and British employment law to displace the ordinary territorial rule. A genuinely expatriate employee requires an especially strong connection. The same test applies to dismissal and detriment claims arising from protected disclosures. Section 103A does not create a separate or looser jurisdictional test merely because unfairness is presumed once the reason for dismissal is established. A purposive construction identifies the applicable test; it does not permit different tests for particular sectors or disclosures. European Convention and Charter rights cannot extend the Act to employment in Singapore where neither instrument applies and no directly effective European Union right is engaged.

The appellant, an Italian national, lived and worked in Singapore for the respondent bank. His employment contract was governed by Singaporean law, and he was dismissed in Singapore. The bank’s headquarters in Great Britain was the only identified connection with the United Kingdom.

At a preliminary hearing, the Employment Tribunal held that the territorial test applicable to ordinary unfair dismissal also governed claims of detriment and automatically unfair dismissal for making protected disclosures. The claims were struck out for want of territorial jurisdiction. The appeal concerned whether protected-disclosure claims required a looser test, having regard to freedom of expression, the public interest in the United Kingdom, and alleged Parliamentary intention.

The appeal was dismissed. The Employment Tribunal had correctly applied the territorial principles developed in Lawson v Serco Ltd, Duncombe and Ravat.

1. The implied territorial limitation of the Employment Rights Act 1996 requires a sufficiently strong connection with Great Britain and British employment law to displace the ordinary rule that the place of employment is decisive. For a worker who both works and lives abroad, the connection must be especially strong. British ownership or the employer’s base in Great Britain is insufficient.

2. Section 103A operates within the statutory right not to be unfairly dismissed in section 94. It makes dismissal for the principal reason of a protected disclosure automatically unfair, but it does not alter the territorial scope of that right. No less stringent test applies to detriment short of dismissal arising from a protected disclosure.

3. Bleuse v MBT Transport Ltd did not justify a different result. Its working-time reasoning concerned a directly effective European Union right and the need to provide an effective remedy within the relevant European context. No European Union legislation applied in Singapore, and neither the ECHR nor the Charter supplied jurisdiction in this case.

4. A purposive approach assists in identifying the statutory test. It cannot make the Act worldwide in relation to disclosures of any nature, or create a special rule for financial-sector disclosures or activities regulated in the United Kingdom. Public interest in hearing a disclosure does not itself establish the required employment connection.

5. The appellant conceded that the employment could not satisfy the sufficiently strong connection test. The appeal was therefore dismissed, and permission to appeal was refused.

1. Employment Appeal Tribunal: The appeal from the Employment Tribunal’s strike-out decision was dismissed. Permission to appeal was refused.