A swathe of employment cases have sprung up over the last few years which have considered whether employees working abroad are able to bring unfair dismissal claims; building upon the categories set out in the landmark House of Lords case of Lawson v Serco Ltd[1].

The cases are derived from an ambiguity in the Employment Rights Act 1996 (ERA) as to the geographical scope of its provisions. Section 94(1) ERA provides: “An employee has the right not to be unfairly dismissed.” Section 230(1) of ERA provides that “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. Neither of these provisions contains any geographical limitation; nor is there any such limitation to be found anywhere else in the ERA.

Last year in Duncombe v Secretary of State for Children, Schools and Families (No 2)[2] Lady Hale noted that section 94(1) could not apply to all employment anywhere in the world; as such territorial limits have been implied. Indeed, this seems to be an area of employment law likely to develop further in view of the increasingly global nature of business.

In February 2012 the UK Supreme Court has broken further ground in the much anticipated judgment of Ravat v Halliburton Manufacturing and Services Ltd [3]. In which Lord Hope held that Mr. Ismail Ravat, a British citizen who lives in Preston, and who worked for a British-registered company (Halliburton Manufacturing & Services Ltd, based near Aberdeen) in Libya on a rotational month-on, month-off basis, could bring a claim of unfair dismissal.

Background

Mr. Ravat was employed from 2 April 1990 as an accounts manager until he was dismissed with effect from 17 May 2006; purportedly for redundancy. At the time of his dismissal Mr Ravat was working in Libya. To add further confusion to the equation Mr Ravat reported on a daily basis to an operations manager based in Libya, but on policy and compliance issues he reported to an African Region Finance Manager employed by another UK Halliburton subsidiary based in Cairo – it was this office that made the decision to dismiss him. His human resources contact was the human resources department in Aberdeen and with another of its employees who was the HR representative in Libya.

Mr Ravat had no formal obligation to do any work during the 28 days while he was at home. Any duties that he performed in Great Britain, such as responding while at home to emails, were incidental to that overseas employment. The company’s commuter policy provided that whilst Mr Ravat was working on a foreign assignment his terms were such as to preserve the benefits, such as pay structure and pensions, for which he would normally be eligible had he been working in his home country other than those which were purely local such as a car allowance. Mr Ravat was remunerated on the normal UK pay and pension structure that applied to the company’s home-based employees; he was paid in Sterling into a UK bank account, and he paid UK income tax and national insurance on the PAYE basis.

After Mr Ravat was dismissed he invoked the UK grievance procedure, as he was advised that he was entitled to do by the HR department. The grievance hearing, the redundancy consultations and Mr Ravat’s appeal against his dismissal all took place in the Aberdeen office. Mr Ravat received a redundancy payment which was stated to have been paid to him in accordance with s.135 ERA – which confers the right to a redundancy payment to an employee who is dismissed by the employer by reason of redundancy.

The question was whether the employment tribunal has jurisdiction to consider Mr Ravat’s complaint. The Supreme Court held that it did; and remitted the case to the Tribunal to deal with the merits of Mr Ravat’s claims that he was dismissed unfairly.

Philip Henson

Partner, and Head of Employment law, Bargate Murray.

www.bargatemurray.com  

A consultation document setting out the detail of these changes will be published shortly, together with draft regulations.

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The pilots will run for 12 months and, if successful, the Government will consider introducing them into other areas of England, Scotland and Wales.

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On behalf of all the partners at Bargate Murray solicitors in London I am delighted to wish all of our friends and clients in China, and the Special Administrative Region of Hong Kong, a very happy new year. May the year of the Dragon bring you, and your family, health, happiness and prosperity.

Gong hay fat choi

身體健康！心想事成！

Philip Henson, Partner Bargate Murray (www.bargatemurray.com)

Employment law; litigation; corporate commercial; shipping and superyachts

This focus document highlights the key changes that the government intends to bring into force to employment law in 2012, many of which have received extensive publicity in the media.

Unfair dismissal qualifying period to be increased

The qualifying period for unfair dismissal claims will be increased from one to two years. Further details are expected shortly to explain whether the new qualifying period will apply to existing employees or only to new joiners. There will continue to be no qualifying period for discrimination claims and whistleblowing claims.

Employment tribunals

• Cost awards. The maximum amount of costs a tribunal can award (without referring the case to the county court for detailed assessment) will increase from £10,000 to £20,000.

• Judges to sit alone on unfair dismissal cases. Unfair dismissal cases in the tribunal will be heard by a judge sitting alone without lay members.

• Push for Mediation. The government will undertake a “long term reform programme” to increase the use of mediation to resolve disputes.

• Witnesses. Tribunals will be given powers to direct parties to bear the costs of witness attendance, including the costs of witnesses called by the successful party; and the government will withdraw state-funded expenses.

Statutory benefits

The proposed rates of statutory benefits, which will apply from early April 2012, are:

• The standard rates for statutory maternity pay, statutory paternity pay and statutory adoption pay will increase from £128.73 to £135.45. The weekly earnings threshold for these payments will rise from £102 to £107.

• Statutory sick pay will increase from £81.60 to £85.85, with the weekly earnings threshold also rising from £102 to £107.

• Maternity allowance will increase from £124.88 to £135.45, with the earnings threshold remaining at £30. Financial penalties for employers

• The government intends to introduce financial penalties (at the employment tribunal’s discretion) for employers who lose at an employment tribunal. The penalties are expected to equate to half of the total award made by the employment tribunal, with a minimum threshold of £100 and a maximum cap of £5,000 – which will be reduced by 50% if paid within 21 days.

Philip Henson, Partner and Head of Employment Law, Bargate Murray, London

(C) Philip Henson

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On a recent trip to Japan we trekked up a mountain to see the Jigokudani Yaen-Koen snow monkeys!

It was an amazing experience, and if you look at the photos I am sure that you will be shouting “aww, they are so cute” in less a minute. ENJOY!

I will post a link to some YouTube videos shortly.

All the best to all my readers for 2012, may it bring you happiness and prosperity.  

 Philip Henson, Partner and Head of Employment Law @ Bargatemurray. www.bargatemurray.com

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 The employers in that case were entitled to insist that employees working on an offshore installation took their paid annual leave during so-called “field-breaks” spent onshore. The decision may have ramifications for the education, shippung and tourism sectors, where annual leave is required to be taken during certain periods when no work is undertaken.  Case refererence – Russell and others v Transocean International Resources Limited and others [2011] UKSC 57.

The photos start off with St James’ Park, and the famous Pelicans who inhabit Duck Island! First introduced in 1664 as a gift from the Russian Ambassador, they were getting a lot of attention today. They are often seen wandering about,  and caused a lot of attention for swallowing a pigeon a few years back.

Sunset over Buckingham Palace; A view down the Mall showing the Turkish and British flags to mark the three-day state visit of the Turkish President Abdullah Gul this week; A couple of photos from the famous Speakers Corner (where you can hear some interesting, and often rather bizarre views from people on their soap boxes) where people were being encouraged to sign a petition for natural blonde hair day; Sunset over a foggy Hyde Park; Winter Wonderland in Hyde Park, and the Horse riding area in Hyde Park.

By Philip Henson, Partner in Award Winning Law London Law Firm Bargate Murray. www.bargatemurray.com

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The Ministry of Justice has recently launched a consultation on proposed changes to fees in the High Court and Court of Appeal Civil Division. The consultation is aimed at users of the High Court and Court of Appeal Civil Division, the legal profession, the judiciary, the advice sector and all with an interest in this area in England and Wales. We encourage you to have your say, and here is a link to the online questionnaire.

The consultation explains that in 2010/11 the cost of running non-criminal business in the courts service in England and Wales was around £612m a year. Of this, around 80% is funded through court fees. The remaining amount of around £121m is funded by the taxpayer as part of the Ministry of Justice’s resource budget.

The consultation provides the following (non-exhaustive) list as an insight into the various ways by which fees finance the courts:

• accommodation (court buildings) and furnishings;
• running court buildings (utilities);
• salaries and expenses for court staff and the judiciary;
• information technology and telephone systems;
• new and ongoing estates maintenance;
• stationery, office equipment and resources; and
• shared costs from the Ministry of Justice – e.g. human resources, training.

To further reduce the burden on the taxpayer (and of course add a further weight to those who wish to use the court system), the consultation makes various proposals, including:

• Increasing certain High Court and Court of Appeal Civil Division fees, for example, it proposes to increase the fee for permission to appeal in the Court of Appeal from £235 to £465;

• Introducing a range of new fees, for example, £105 for urgent applications in the High Court and a listing fee of £110 in the Court of Appeal; and,

• Introducing time-related hearing fees in both the High Court and Court of Appeal Civil Division (to reflect the increased cost involved in longer trials).

The consultation will close on 7 February 2012 and a response is expected by 7 May 2012.

www.bargatemurray.com

Mr. Brodie Clark, the former chief of the UK Border Agency, has indicated that he intends to lodge a claim in the employment tribunal for constructive dismissal. His statement, released via the FDA Union, sounded as if it had been intentionally dipped in TCP to sting the emergent wounds of the Home Secretary.

In his claim Mr Clark will no doubt say that the acerbic comments made by Theresa May in the House of Commons on 7 November 2011 amounted to a fundamental breach of contract by his employer (the UK Border Agency is an executive agency of the Home Office), and that he resigned in response to that breach. Mr Clark’s statement specifically referred to his employer having disregarded his right to reply “in favour of political convenience”, and he denied May’s claim that he had improperly relaxed passport checks in order to manage growing airport queues. Mr Clark will have been advised to resign promptly to negate any argument that he has waived any breach, and chosen to affirm the contract.

Tribunal face-off?

Mr Clark may be asked to give evidence to the Home Affairs Committee, and his evidence may prove to be an interesting warm-up to a dramatic employment tribunal face-off; with Mrs. Theresa May (possibly giving evidence in person); the Home Office, and the treasury solicitors in one corner, and Mr Clark, his Union and which ever firm of solicitors he, or his Union, instruct in the other. His legal team will be carrying out a careful analysis of the words that Mrs. May used in Parliament and the Home Affairs Committee about Mr Clark, and a full review of publically available official reports.

Remuneration

The Home Secretary’s comments coincided with the publication of a Home Affairs Committee report into the work of the UK Border Agency (for the period April – July 2011), which included a table listing Mr Clark’s salary as £130,000-£135,000 per annum, with a bonus range of £5,000 – £10,000. Mr Clark will be under a duty to mitigate his loss.

Mediation?

If Mr Clark does issue a claim for constructive dismissal then he may have to wait many months before he sees the inside of an employment tribunal, as the tribunal service is bursting at the seams.

Employment lawyers will watch with interest to see whether the Government suggests mediation or enlisting ACAS, as a means of trying and resolve this dispute – the processes which have been superciliously endorsed by the coalition as cheaper alternatives to employment tribunals – or if the Government will put its mediation rhetoric to one side and rigorously defend any claim(s) from Mr Clark.

Philip Henson

Partner and Head of Employment Law – Bargate Murray

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