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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Halliburton Manufacturing & Services Ltd v. Ravat [2008] UKEAT 0012_08_2210 (22 October 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0012_08_2210.html Cite as: [2008] UKEAT 0012_08_2210, [2008] UKEAT 12_8_2210

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APPEARANCES

 

For the Appellants	MR IAN TRUSCOTT (One of Her Majesty's Counsel) Instructed by: Messrs Paull & Williamsons Solicitors Braemar House 267 Union Street Aberdeen AB11 6BR
For the Respondent	Ms CHRISTINE McCROSSAN (Solicitor) Messrs Quantum Claims Employment Division Queen's Cross Aberdeen AB10 1UP


 


SUMMARY

JURISDICTIONAL POINTS: Working outside the jurisdiction

Jurisdiction in unfair dismissal. The Claimant was employed by the respondents, a UK company in the business of providing tools, services and personnel to the oil industry. He worked in Libya, on operations which were part of the business of an associated German company. He was dismissed and sought to pursue a claim of unfair dismissal before the Employment Tribunal in Aberdeen. The Tribunal found that it had jurisdiction on the basis that there was a substantial connection between Great Britain and the employment relationship. On appeal, the EAT found that the Tribunal had applied the wrong test, under reference to Lawson v Serco Ltd [2006] ICR 250 It had erred in concluding that it had jurisdiction. Claim dismissed.


 


THE HONOURABLE LADY SMITH

INTRODUCTION

1. This is an appeal by Halliburton Manufacturing Services Ltd, the employers, against a decision of the Employment Tribunal sitting at Aberdeen, Chairman Mr R G Christie, registered on 23 November 2007, in terms of which it found that it had jurisdiction to consider Mr Ravat's complaint of unfair dismissal.
2. I will refer to parties as claimant and respondents.

BACKGROUND

3. The jurisdiction question arose in this case because the claimant was not working in Great Britain when he was dismissed. The respondents operate in the UK and are in the business of supplying tools, services and personnel to the oil industry. They are one of about 70 companies which are, either directly or indirectly, subsidiaries of Halliburton Inc., a US corporation.
4. The claimant had worked for the respondents since 1990. From March 2003, he began working in Libya, whilst remaining in the respondents' employment. His job was that of Accounts Manager. His work there was not, however, in the respondents' operations. The Halliburton operations being carried out in Libya were those of a Halliburton company incorporated and based in Germany. It was in those operations that the claimant was working whilst in Libya. He reported on a daily basis to an Operations Manager based in Libya. His duties involved ensuring that all day to day transactions were properly reported to Germany. In respect of policy and compliance he reported to the Africa Region Finance Manager who was based in Cairo and employed by a different UK Halliburton company. The claimant sometimes attended meetings in Germany. His salary, though paid to him by the respondents, was re-charged to the German company. Decisions on salary increases and bonuses were made by the management of the German company in Libya. The claimant worked on a four week on/four week off basis, spending the four weeks at home in Preston, Lancashire. He did some work whilst at home such as responding to emails but he accepted that he was not required to do so as part of his contract. His travel arrangements were dealt with by a company in Malta. That was in the light of international trade sanctions against Libya and the need to avoid obvious trade connections with the US or UK.
5. The claimant was paid in sterling and under deduction of UK income tax and national insurance contributions. He liaised with the Aberdeen office regarding HR matters such as travel arrangements, medical examinations and payroll for the employees working in Libya.
6. In 2003, the claimant had asked the respondents whether UK employment law would still apply to him whilst he was working in Libya. He was provided with a document normally issued only to managers working abroad, which indicated that he would be; it stated in terms, as advice to such managers, that UK local legislation continued to apply to UK nationals when working overseas. The claimant was assured by the respondents that he would continue to have the protection of UK law. His contract indicated that UK law would continue to apply whilst he was working abroad.
7. In May 2006, the claimant was dismissed for redundancy. The decision to dismiss him was taken by the Africa Region Finance Manager based in Cairo and who was, as above noted, not employed by the respondents. He did so having sought guidance from the respondents' HR department in Aberdeen. The claimant was paid a sum entitled "Statutory Redundancy Pay". He appealed against his dismissal and the appeal was heard in Aberdeen.

RELEVANT LAW

8. Section 94(1) of the Employment Rights Act 1996 ("the 1996 Act") provides:

"An employee has the right not to be unfairly dismissed by his employer."

9. Nothing further is now said in the statute regarding the extent of the tribunal's territorial jurisdiction to entertain a claim in respect of unfair dismissal. Section 196 of the 1996 Act contained express provisions about jurisdiction to the effect that the tribunal's jurisdiction did not extend to cases where the employee was engaged in work wholly or mainly outside Great Britain if he did not ordinarily work in Great Britain under a contract of employment governed by the law of England and Wales or Scotland. That was, however, recognised by Parliament to be an unsatisfactory provision and the section was repealed leaving nothing in its place other than that the courts were left to imply any appropriate geographical limitations. It has been authoritatively stated that it is inconceivable that Parliament intended that there be no geographical limitation on the territorial scope of the provision (Lawson v Serco [2006] ICR 250 ).
10. The nature of that limitation was discussed and explained in Lawson, in which Lord Hoffmann gave the leading speech. At paragraph 1 he said:

"It is inconceivable that Parliament was intending to confer rights upon employees working in foreign countries and having no connection with Great Britain. The argument has been over what those limitations should be. Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair? The answer to this question will also determine the question of jurisdiction, since the Employment Tribunal will have jurisdiction to decide upon the unfairness of the dismissal if (but only if) section 94(1) is the appropriate choice of law."

11. Appropriateness is, accordingly, identified at the outset as the key issue. That is not surprising. The concern must, sensibly, be as to when it is and is not appropriate to afford employees the right not to be unfairly dismissed conferred by the UK legislation and when it is and is not appropriate to hold an employer to the correlative duty not to unfairly dismiss its employees and to impose on them the obligation to afford a remedy if they do so. Hence, so it appears, Lord Hoffmann's adoption, at paragraph 6, of the question posed by Lord Wilberforce in the case of Clark v Oceanic Contractors Inc [1983] 2 AC 130 ,152:

"Who, it is to be asked, is within the legislative grasp or intendment, of the statute under consideration?"

12. In determining the circumstances in which it will and will not be appropriate to hold that the tribunal has jurisdiction, Lord Hoffmann said that the earlier history of the legislation, when section 196 was in force, was relevant. It showed that Parliament had attached importance to the employee's place of work when considering jurisdiction questions and place of work thus retained "persuasive force" (paragraph 11). Further, he clearly stated that the question of whether or not a tribunal had jurisdiction to entertain a section 94(1) claim was a question of law (see paragraphs 24 and 34) and that it is a question that requires to be asked and answered as at the date of dismissal, not as at the date of contracting (paragraph 27).
13. In the course of discussing the competing submissions before their Lordships, it is of particular significance for the present case that, at paragraph 19, he dismissed the suggestion that the test could be formulated as being, where a British based employer had recruited an employee from the resident British labour pool to work abroad, to ask whether the employment relationship was "forged and ultimately rooted" in Great Britain. He took the view that metaphors were liable to lead to difficulty and added:

"Secondly, it is wide enough to include all cases in which British employees are recruited by a British employer to work abroad, even if the business in which they work is indistinguishable (apart from ownership) from any similar business operating under the employment laws of the foreign country."

14. So, the fact that an employee was recruited by a British company in Great Britain, to work for them abroad would not, in itself, be enough for jurisdiction. Lord Hoffman was plainly seeking to exclude jurisdiction where it was sought purely on that basis. In the section of his speech headed "Principles not rules", he explains that determining whether or not there is jurisdiction depends on the application of principles not rules. I take from that that what he has in mind includes the principle identified by him in paragraph 1 of the appropriateness of recognising jurisdiction in the circumstances of the particular case and I take from his dismissal of the proposition that where a British employee works for a British company abroad, jurisdiction exists, that it is not appropriate to find jurisdiction solely on that basis. Lord Hoffman then looks at the different categories into which a person's employment could fall in a case where the jurisdiction question arises. The "standard" case is where the employee ordinarily works in Great Britain. It is readily understandable that whatever the base of his employer, such an employee should be afforded the section 94(1) right.
15. The second category that Lord Hoffman allows for is where the employee is employed to work peripatetically. In a shift of approach which would, no doubt, have been heartening to the late Lord Denning, Lord Hoffman (at paragraph 29) approved what he had said in the case of Todd v British Midland Airways Ltd [1978] ICR 959 at 964 to the effect that what mattered in the case of a peripatetic employee was his "base" and that that was the place where he should be regarded as ordinarily working. So, in the case of an airline pilot based at Heathrow, he would be regarded as being in the same position as someone whose ordinary working day was spent in Great Britain even although in fact most of his working days were spent outside the country. That was plainly seen as appropriate because his work base was in Great Britain. I note, in passing, that at paragraph 34, whilst Lord Hoffman observed that a tribunal's decision as to whether or not an employee had his base in Great Britain was worthy of "considerable respect" it was actually a decision on a question of law; he was evidently anxious to avoid the exclusion of a right of appeal on the matter.
16. The third category considered by Lord Hoffmann was that of what he calls "expatriate employees". It is plain from the discussion at paragraphs 35 to 40 that he has in mind all cases in which a British or, possibly, any employee works abroad for a British employer. That would, accordingly, appear to cover all cases in which the jurisdiction could arise which do not fall within the first two of his categories. Lord Hoffmann does not restrict this category to those cases where the employee lives in the jurisdiction where he works. The key factor is that the employee is working abroad for a British employer. His place of residence is not, on Lord Hoffmann's analysis, of any relevance. That is understandable. The accrual of section 94(1) rights cannot be dependent on an employee's place of residence; if that were so then an employee who commutes to London to work for a British based employer in his British business, from his residence in Paris would not be entitled to the protection it affords, yet it would clearly be appropriate that he qualify for it. The point is not where he is when he is not working; what requires to be examined is where he ordinarily is when he is working and whether, if that is not in Great Britain, it is appropriate nonetheless that he be entitled to assert a claim under section 94(1) and that his employer be fixed with the duty that that right reflects.
17. Lord Hoffmann explains further that there are restricted circumstances in which jurisdiction arises notwithstanding the fact that the employee is ordinarily working abroad. At paragraph 37, he makes it plain that working abroad for a British employer is not enough for jurisdiction:

"First I think that it would be very unlikely that someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Great Britain. But that would not be enough. Many companies based in Great Britain also carry on business in other countries and employment in those businesses will not attract British law merely on account of British ownership. The fact that the employee also happens to be British or even that he was recruited in Britain, so that the relationship was 'rooted and forged' in this country, should not in itself be sufficient to take the case out of the general rule that the place of employment is decisive. Something more is necessary."

18. The example which Lord Hoffmann gives as one in which jurisdiction will not exist is one where, nevertheless, a substantial connection with Great Britain would be able to be demonstrated. It is thus clear that he does not approve a test of a "substantial connection". On the contrary, he is saying that that is not enough.
19. For illustration of the "something more" that would be required, Lord Hoffmann refers to the circumstances in the case of The Financial Times v Bishop unreported EAT/147/03, BAILII: [2003] UKEAT 0147_03_2511, where a sales executive employed by the newspaper whose responsibility was to sell advertising space was working in San Francisco. There were not sufficient facts found to identify whether he was doing so as part of the business which the employer conducted in London or whether he was in fact working for a business which the newspaper or an associated company was conducting in the US. However, what Lord Hoffmann focussed on was the need, on remission to the tribunal, to distinguish between the two sets of circumstances because whilst jurisdiction would, by applying his principles, have existed in the former case, it would not have existed in the case of the latter. As regards the former case, that would have been sufficient, according to Lord Hoffmann, because there the employee could properly be regarded as a "representative of a business conducted at home" (para 38) such as:

"...the foreign correspondent on the staff of a British newspaper who is posted to Rome or Peking and may remain for years living in Italy or China but remains nevertheless a permanent employee of the newspaper who could be posted to some other country. He would in my opinion fall within the scope of section 94(1)." (para. 38)

20. When the Financial Times case was before the EAT, HHJ Burke stated that the relevant test was one of substantial connection. There is though no question of Lord Hoffmann, by referring to the case in the way and for the purpose that he did, approving or adopting the "substantial connection" test. It is quite clear from a reading of his speech as a whole that he did not consider that that test could properly identify when it was appropriate for there to be jurisdiction.
21. Separately, Lord Hoffmann gave the example of an employee working abroad but in circumstances where, for all practical purposes, he is working in an extra territorial British enclave such as where the employee works in a British military base abroad. He could not think of any other examples:

"40. I have given two examples of cases in which section 94(1) may apply to an expatriate employee: the employee posted abroad to work for a business conducted in Britain and the employee working in a political or social British enclave abroad. I do not say that there may not be others but I have not been able to think of any and there would have to be equally strong connections with Great Britain and British employment law."

22. Thus, on the authority of Lawson v Serco, if an employee does not ordinarily work in Great Britain or cannot be regarded as doing so because he is a peripatetic employee who has his base in Great Britain, then it is only in exceptional circumstances that there will be jurisdiction. The character of those circumstances must be that he is recruited in Britain by an employer who is British for the purposes of furthering, by working abroad, the British business of that employer, not the foreign business of that employer. Even less can it be the case that jurisdiction will arise where the employee whilst employed by a British employer is not working abroad for that employer but is actually working for the business of a separate, foreign, employer.
23. The circumstances of the employees in the case of Ashbourne v Department of Education & Skills UKEAT/0123/07, BAILII: [2007] UKEAT 0123_07_2611 , are an example of where jurisdiction will not arise despite the fact that the employees were recruited in London and employed by a UK government department. Their work involved their educating the children of EU officials in schools outside Great Britain. They were not representatives working abroad for the purposes of a British business at home nor were the schools at which they taught British enclaves abroad. They could not establish a connection with Britain equally strong to such a connection. Williams v University of Nottingham [2007] IRLR 660 is another example. There, the claimant was employed by the University of Nottingham, recruited to take up a post in a joint venture between the university and another in Malaysia, which was where he worked. His work was for the purpose of the separate and distinct business of the joint venture and not for the purpose of his employer notwithstanding the fact that there were certain necessary and consequential benefits which accrued to the university from the work carried out in Malaysia.
24. It is also clear that the proper law of the relevant contract of employment is irrelevant. It was not considered to be relevant even under the substantial connection test (see: Financial Times Ltd v Bishop at paragraph 73) and there is no hint in Lawson v Serco of it being considered to be a relevant consideration. Jurisdiction cannot, of course, be determined according to whether or not parties have agreed that jurisdiction exists. Whether it does is a question of law the answer to which is not determined by or dependent on what parties do or do not agree as to its existence.
25. Section 204 of the 1996 Act provides:

"For the purposes of this Act it is immaterial whether the law which (apart from this Act) governs any person's employment is the law of the United Kingdom, or a part of the United Kingdom, or not."

HHJ Altman referred to those provisions in his judgment in the Lawson v Serco at the Employment Appeal Tribunal stage (unreported EAT/0018/02), BAILII: [2003] UKEAT 0018_02_1103, and commented in terms with which I would respectfully agree, at paragraph 24, where he said:

"Whatever law governs the contract of employment generally, therefore, it appears that it does not circumscribe the operation of the Act itself. The addition of the words 'or not' at the end clearly embrace foreign law. Such other law is 'immaterial' to the application of the provisions of the Act. It seems to us to follow that where the Act contains a mandatory right or duty, then provided there is jurisdiction in a particular case, those provisions will apply whatever law may apply to the remainder of the contract."

26. The Court of Appeal adopted the same approach, at paragraph 18 of its judgment in the Lawson v Serco case ( [2004] ICR 204 ):

"The provision in section 204(1) that it is immaterial whether the law which governs the contract of employment is the law of the United Kingdom or part of the United Kingdom or not, is not inconsistent with the conclusion that the Act applies only to employment in Great Britain. Protection covering employment in Great Britain is not to be defeated by a choice of law other than that of the jurisdiction."

27. That is as far as section 204 goes. It does not support the contention that parties' contractual agreement as to choice of law also operates so as to confer jurisdiction or that any assurance given by the employer to the effect that an employee will have effective rights under UK employment legislation available to him is relevant when considering whether jurisdiction exists. As Elias P commented in Bleuse v MBT Transport Ltd and Anor [2008] ICR 488 at paragraph 43:

"Section 204 ….makes it plain that the proper law of the contract is of no materiality when considering the reach of the statutory rights."

28. Bleuse was a case involving a peripatetic employee and at paragraph 45 Elias P commented further:

"... Parties cannot by agreement extend the scope of the rights which Parliament has conferred. The only issue is whether, as a matter of fact, the employee is based in the United Kingdom and neither the terms of the contract nor its proper law determine that question."

THE TRIBUNAL'S JUDGMENT

29. The Tribunal was evidently troubled by the issue it had to decide. It regarded the matter as finely balanced but ultimately concluded that it did have jurisdiction, commenting that:

"54. … I think this conclusion falls within the band of reasonable responses available to a reasonable Chairman of employment tribunals, assuming the existence of such, in the assessment of the basket of facts present in this case."

30. That observation is unusual to say the least. It is also irrelevant and suggestive of the Tribunal thinking that it had a discretion in the matter, which it did not. The question of whether or not a tribunal has jurisdiction to entertain a claim for unfair dismissal is a question of law (see: Lawson v Serco at paras 24 and 34 per Lord Hoffmann). For that reason alone, the correctness of the Tribunal's conclusion is questionable. However, the appeal went further and focussed, appropriately, on the substance of the Tribunal's reasoning which can be summarised as follows:

(1) The Tribunal interpreted the decision of their Lordships in Lawson v Serco as being to the effect that:

"23. …in very general terms, that an employment tribunal is now to look at any 'connection between Great Britain and the employment relationship' and to determine whether any such connection is of sufficient strength or substance to enable it to be said that Parliament would have intended that particular relationship to come within the scope of the Act ."

The Tribunal thought that the principle as articulated in its paragraph 23 had been "foreshadowed" (para 23) by two earlier decisions of the EAT, namely Jackson v Ghost Ltd [2003] IRLR 824 and The Financial Times Ltd v Bishop (EAT/0147/03), BAILII: [2003] UKEAT 0147_03_2511, and that:

"These indicated that an Employment Tribunal has jurisdiction under ERA if the employment in question had a sufficient and substantial connection with Britain." (Also paragraph 23)

(2) It observed that there was a general presumption that UK statutes do not normally apply outside the UK but that the presumption had been rebutted by the repeal of section 196 of the Employment Rights Act 1996.

(3) It noted that in the case of The Financial Times Ltd v Bishop, Judge Burke, sitting in the EAT had said that the test for jurisdiction was that of whether or not there was substantial or sufficient connection with the United Kingdom.

(4) Noting that The Financial Times v Bishop was referred to by Lord Hoffmann in Lawson v Serco, it interpreted what Lord Hoffmann said as confirming that the relevant test had been correctly articulated there. At paragraph 28, the tribunal states:

"That decision of the EAT was referred to expressly by Lord Hoffman in paragraph 38 of the judgment in Lawson v Serco albeit for a different purpose but without any suggestion of criticism of the approach. Indeed he commends the EAT for remitting the case to the Employment Tribunal to make further findings in fact. The purpose in their doing so was precisely so that the Tribunal could investigate further and determine on the facts whether Mr Bishop's claim met the substantial connection test or not ."

(5) Whilst noting that Lord Hoffmann had identified three categories into which employees could fall when a question of whether or not a tribunal had jurisdiction to entertain an unfair dismissal claim arose, it considered that it was not necessary to place a claimant into one or other of those categories. That was because a claimant might have a substantial connection with the UK whilst working abroad yet not fit into one of them (see: paragraph 39 of the Tribunal's judgment).

(6) The claimant in the present case did not fall into any of Lord Hoffmann's categories. The reason he did not fall into the "expatriate" category referred to by Lord Hoffmann was, accordingly to the Tribunal, that he did not live abroad. The Tribunal relied on the New Oxford Dictionary definition of "expatriate" in reaching that conclusion.

(7) The tribunal had difficulty in understanding Lord Hoffmann's distinction between an employee working abroad for a business which was being conducted in Great Britain and an employee working abroad for a business being conducted abroad. It was of the view that:

"46. Things in reality are not so clear cut; and the danger emerges that a right of a British employee to have access to the protections provided by the legislation of his own country and which neither side in the relationship has intended should be removed, may become in part dependant upon, inter alia, whether the activity in which he is engaged abroad does or does not constitute conduct of his employer's business. If it is not an activity which is part of that, or intrinsically linked to it, then one wonders what the employee is doing in the foreign country in the first place … for the employee concerned the outcome is of course a matter of great significance. However it is an outcome that I fear may occasionally be determined by what in the end is mere fortuity, rather than something central to his employment relationship."

(8) The tribunal considered section 204 of the 1996 Act, noted that a choice of law clause is irrelevant to deciding whether or not an employee has section 94(1) rights or not but stated that it considered that the fact of an assurance about the availability of the right having been given to the claimant was not necessarily to be excluded from consideration.

(9) The tribunal applied a "substantial connection" test and found that on the facts there was a sufficiently substantial connection with Great Britain retained to found jurisdiction. It included in the factors which it took into account in so doing the deliberate retention of the reference to UK legislation in the contractual documentation and the verbal assurance that had been given to the claimant that he continue to have the protection of UK employment law. It added to its conclusion:

"54 … I have regarded the case as being finely balanced and perhaps even a slight twist in the circumstances may have caused me to think differently."

THE APPEAL

31. Mr Truscott QC, for the respondents, submitted that the Tribunal had erred. It had applied a substantial connection test when that was the wrong test to apply. It failed to recognise that the present case fell within Lord Hoffmann's "expatriate" category and that there were no exceptional circumstances. The Tribunal did not, accordingly, have jurisdiction. The Tribunal had, without justification, resuscitated the "substantial connection" test articulated in The Financial Times v Bishop and in Jackson v Ghost Ltd [2003] IRLR 824 The reasoning in those decisions had not been approved by the House of Lords in Lawson v Serco. The Tribunal had also applied a test of sufficiency which was not right. It had, further, come close to regarding the claimant's place of work as immaterial as evidenced by its reference to where he "happened to be working" in paragraph 38. It was not an accident that the claimant had ended up working in Libya, as that approach seemed to imply. The Tribunal should have applied the law as set out in Lawson v Serco, found that the claimant fell within the third, expatriate, category considered by Lord Hoffmann, and that there were no exceptional circumstances giving rise to jurisdiction.
32. In support of his submissions, Mr Truscott referred to: Anderson v Stena Drilling PTE Ltd unreported EAT/80/04, BAILII: [2006] UKEAT 0080_04_1708, Hunt v United Airlines Inc. [2008] ICR 934 , and Cliffe v KSS Ltd unreported EAT/618/05, BAILII: [2006] UKEAT 0618_05_2002, in addition to the cases already cited.
33. For the claimant, Ms McCrossan submitted that the Tribunal had not erred. Lord Hoffmann had not stated that peripatetic/expatriate were legal definitions. They were examples. Cases did not have to fit into those categories. By regularly returning home to the UK, the claimant maintained a strong connection with Great Britain. The Tribunal had painstakingly set down the guidance given by Lord Hoffmann. The correct issue was that of substantial connection: The Financial Times v Bishop. The question of whether or not an employee was peripatetic or expatriate was one of fact. Whilst she did not accept that it was wrong to have found that the claimant was not in the expatriate category because he did not live in Libya, if he should have been in that category then there should be a remit to the Tribunal to ask them to find whether or not on the facts the claimant was an expatriate employee, ignoring the question of where he lived.
34. Ms McCrossan accepted that the reference to the reasonable range of responses open to a chairman of employment tribunals was unfortunate but given its context and place in the judgment, the question was one of degree, as recognised by Lord Hoffmann. Regarding the reference to the parties' contract and assurances given by the respondents, she submitted that the Tribunal had not erred. It had not treated the matter as determinative; rightly, it had not placed great weight on the matter.

DECISION

35. I am readily satisfied that the Tribunal erred in law. It applied a test of "substantial connection" with Great Britain and should not have done so. A test of "substantial connection" falls far short of the criteria inherent in the principles identified by Lord Hoffmann, to which principles I have already referred. It also took account of the proper law of the parties' contract and the reassurances given to the claimant by the respondents about the availability to him of UK employment law, neither of which were relevant.
36. Separately, the Tribunal does appear to have approached matters on the basis that it was some matter of accident that the claimant found himself working in Libya, which was not correct on the facts found. Also, the idea that it had available to it a range of reasonable responses, as though it had a discretion in the matter, was quite wrong. It did not have a discretion. What it had before it was a question of law which required to be determined by the application of relevant legal principle.
37. The Tribunal has though made clear and full findings of fact regarding the nature and circumstances in which the claimant was working in Libya. He was working abroad for a British company, having been recruited in the United Kingdom. He is British and lives in England. He plainly falls within Lord Hoffman's third category, namely the "expatriate" category. I do not agree with the Tribunal's conclusion that the claimant did not fall within that category because he did not match the dictionary definition of "expatriate", as I have explained. These circumstances are, according to Lord Hoffman "not enough" for jurisdiction (see para 37 of Lawson v Serco); "Something more is necessary".
38. In this case, far from there being "something more" to show that it is appropriate that there be jurisdiction, there is "something less". That is, not only was the claimant not working for the respondents' British business at home, he was actually working in the operation of a German company, reporting for his daily work not back to Britain but to a manager of the German company in Libya and was dismissed by an employee who had his work base in Cairo.
39. In all the circumstances, there was no basis upon which the Tribunal could conclude that there was jurisdiction in this case and I will pronounce an order upholding the appeal and dismissing the claim.