Jurisdiction

Employment Law – Unfair Dismissal – Case Outside the Jurisdiction of Tribunal

The cases of Ashbourne v Department of Education and Skills and Others [2007] and Collins v Department of Education and Skills and Others [2007] concerned issues relating to unfair dismissal and jurisdiction of employment tribunals. The employees in the cases were teachers.

The employer did not directly employ teachers, except in circumstances necessary to fulfil the UK government's obligations to supply teachers to the European Schools which provided education for the children of EU officials. Those schools were governed and administered according to the Convention defining the Statute of the European Schools 1994. Most member states, which employed teachers directly, seconded teachers to the European Schools. Those teachers usually returned to their national employment once the secondment period came to an end.

In the case of the UK, due to the fact that state sector teachers were not directly employed, the employer in this case was required to specially recruit teachers in order to meet the obligation to supply European Schools.

The typical practice involved a maximum of a 9 year appointment, following the successful completion of a 2 year probationary period. The employee in the first appeal completed over ten years of service in Belgium, whilst the employee in the second appeal completed nine years in the Netherlands. Both employees were recruited in London, and both, despite working wholly outside the UK, remained domiciled and ordinarily resident in the UK.

Following the expiry of the employees’ latest fixed term contracts, neither was offered further employment.

They subsequently brought proceedings before the employment tribunal alleging that they had been unfairly dismissed contrary to s.94(1) of the Employment Rights Act 1996 (“the Act”). They further claimed that the employer had acted in breach of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (“the Regulations”).

The tribunal dismissed their claims.

The tribunal believed that their employment had been outside the scope of the protection afforded under the Act and the Regulations. The employees had not been performing their duties for the purposes of the employer's business carried on in Great Britain, nor had they been employed in an extra-territorial British capacity abroad.

The employees subsequently appealed against this decision submitting that the tribunal had made a mistake in finding that they were not protected by either the Act or the Regulations. Unfortunately for the employees, the appeals were dismissed.

It was held that the tribunal had properly directed itself on the applicable law and had properly applied that law to the facts of the case. The employees had been working exclusively abroad and so their employment was not covered by the UK jurisdiction. Furthermore, their employment did not fall within any of the appropriate categories of exceptions. In such circumstances, and in accordance with the Act and the Regulations, the tribunal had been right to dismiss their claims.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.