Thursday, February 16, 2012

Oil Worker in the Libyan Desert is a British Worker - Supreme Court

The Supreme Court has once again been wrestling with the vexed question of who can bring a claim in Great Britain for Unfair Dismissal.

Mr Ravat lives in Preston (England.) He was employed by a (UK) subsidiary of the (American) oil company Haliburton based in Aberdeen ( Scotland.) He was made redundant and claimed Unfair Dismissal.

At the time of his redundancy he was carrying out work in the (Libyan) desert for the benefit of another (German) subsidiary of Haliburton. He "commuted" to and from Libya, spending 28 days on and 28 days off, the latter in Preston (England.)

In 2003 when he was first sent to Libya (having previously worked in turn in England and in Algeria) he had sought confirmation from his employer that he would continue to be covered by UK law and had been assured that he would.

For some obscure reason (!), the Tribunal system found this extremely simple arrangement (!) difficult to categorise in terms of whether an Employment Tribunal in Great Britain (specifically Scotland, where his employer was based) had jurisdiction to hear his Unfair Dismissal claim.

The legislation on Unfair Dismissal used to provide at one time that the right to claim did not apply to an employee who "ordinarily works outside Great Britain." This clause however no longer appears - the Employment Rights Act 1996 is completely silent on the point.

In 2006 the House of Lords considered the position in Lawson v Serco. In effect this decided that someone who worked and was based abroad would not normally be covered by the legislation but there might be exceptional circumstances where the connection with Great Britain was sufficiently clear that there would be jurisdiction to hear the case.

This would include "peripatetic" employees such as an airline pilot who is based at Heathrow but "works" in the skies all over the world. It would also include someone posted abroad for the purposes of a business conducted in Britain (e.g. the Moscow correspondent of a UK daily newspaper) and an employee working in a political or social British enclave abroad (e.g. embassy staff, someone working at an army base on the Rhine.)

Subsequent case law has extended this to cover the situation of employees in an EU school who were employed by the British Government under contracts governed by English law.

The Employment Tribunal decided that there was a sufficiently substantial connection between his employment and Great Britain to make it appropriate to hear the Claim.

The Employment Appeal Tribunal overturned this - he was doing work for a German company in Libya.

This was then overturned in turn by the Extra Division (the Scottish equivalent for this purpose of the Court of Appeal.) And so the case ended up in the Supreme Court for a final decision.

Mr Ravat won. The Supreme Court decided that it was not necessary to shoe-horn the Claimant in to one of the categories in Serco. It simply had to be decided whether the connection with Great Britain was sufficiently strong and substantial that jurisdiction should arise and they felt that here it was. Whilst not conclusive, the facts that the Claimant's employer was based in the UK, that he lived in the UK and that he had been told UK law would apply to him were all factors to be weighed into the equation.

Whilst this outcome seems fair in this particular case, it has to be said (with respect) that the law still does not seem to be at all certain as to in what circumstances jurisdiction will arise and in which it will not. There will no doubt be further litigation and difficult borderline cases in future.