In Ministry of Defence v Wallis & Grocott, the EAT has held that dependants of British members of the armed forces, working for the Ministry of Defence ("MOD") abroad could bring claims for unfair dismissal and sex discrimination in the UK.
Mrs Wallis and Mrs Grocott were both married to serving members of the British armed forces posted abroad, in Belgium and the Netherlands respectively. They were employed by the MOD, under contracts expressly governed by English law, in positions only available to dependants of service personnel. They were dismissed from those posts by the MOD when their husbands left the armed forces and brought claims for unfair dismissal and breach of contract. Additionally, Mrs Wallis brought a claim of sex discrimination.
The EAT upheld the tribunal's decision that it had jurisdiction to hear the claims, finding that:
- the question of whether they were entitled to bring claims of unfair dismissal under the Employment Rights Act 1996 ("ERA") was to be assessed in accordance with the principles set out by the House of Lords in the case of Lawson v Serco. Applying those principles, the EAT agreed that they were both expatriate employees and that there was a sufficient link between their employment and Great Britain to allow them to bring the claims; and
- although Mrs Wallis did not fall within the scope of the express territorial provisions in the Sex Discrimination Act 1975, it was necessary to qualify those provisions in view of the fact that her contract of employment was governed by English law and that she had rights under an EU directive not to be discriminated against on the basis of sex. She was therefore entitled to bring her claim in the UK.
Impact on employers
- In principle, this opens the way for numerous employee rights that are derived from EU law to be enforced in the UK, even if the employee:
- does not work in the UK; and
- would not qualify to bring the claim in the UK under the specific jurisdiction test in the UK legislation.
- In respect of discrimination claims, when the relevant parts of the Equality Act 2010 come into force next month, there will be no express territorial provisions and so it will fall to the courts to determine which employees are entitled to bring claims under it.
- This case provides an indication of the approach that is likely to be adopted.
- It raises the possibility of other rights originating from EU law, such as the right not to be dismissed by reason of a TUPE transfer, being enforced in the UK even though the affected employees work outside Great Britain. This may happen if the employee's contract is governed by UK law or if, under certain other jurisdiction tests, UK law is the mandatory body of law applying to the employee.