British National Working Overseas Has No Right to Bring a Claim in the Employment Tribunals
For employers who engage staff to work overseas, determining whether the can bring a claim in the Employment Tribunals is becoming increasing difficult.
The tests are different according to the type of claim which is being brought. These tests are continually being challenged and developed mainly through case law. Such complexities are highlighted in a recent case from the Employment Appeal Tribunal (EAT), Hassan v Shell International Shipping Services (Pte) Limited and Others, where the EAT determined that a British national working on a ship in Singapore had no right to bring Tribunal claims in England for unfair dismissal, discrimination and breach of contract.
Mr Hassan, a British national, lived in Kent. He was employed by a Singapore company – Shell International Shipping Services (Pte) Limited as a second officer of a Singapore flagged ship. Mr Hassan's employer contracted out his day-to-day management to the company registered in the Isle of Man. His employer also entered into a manning agreement with a company which had its head office in London.
After several years' service Mr Hassan was dismissed. He was dismissed by a letter which was sent from the Isle of Man company. Mr Hassan brought claims in the Employment Tribunal for unfair dismissal, race discrimination and breach of contract. The Tribunal decided that it did not have jurisdiction to hear his claims. He appealed against the decision to the EAT. His appeal was dismissed.
Mr Hassan's claim for discrimination
The Equality Act 2010 contains specific reference to seafarers working on board a ship in circumstances set out under the Equality Act 2010 (Work on the Ships and Hovercraft) Regulations 2011. However, the EAT found that Mr Hassan did not satisfy the conditions of the Regulations. This is because Mr Hassan was not employed on a UK registered vessel with a port in Great Britain specified as the vessel's registered port of choice.
Mr Hassan ran an alternative argument. This too was unsuccessful. He tried to rely on another EAT case called Bleuse v MTB Transport which decided that there must be an effective remedy for vindication of EU rights. Here Mr Hassan relied on the EU Race Equality Directive. The EAT rejected his argument. In contrast to Mr Hassan's case, Bleuse concerned an individual working in the European . There was no authority for Bleuse being applied when the acts complained of occurred outside the EU. Mr Hassan was based in Singapore at the time of his dismissal.
Mr Hassan's unfair dismissal claim
Mr Hassan faced a difficult initial hurdle which he did not overcome. He was employed by a company in Singapore. Under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (which were in force at the relevant time), the Tribunal would have jurisdiction where the respondent resided or carried on business in England and Wales. The EAT found that there was no other way of interpreting this section and based on the facts could not hear his claim.
If the EAT had found Mr Hassan had satisfied the relevant section of these Regulations then it would have to have gone on to apply the Lawson v Serco test to determine whether the Tribunal had territorial jurisdiction to hear the claim.
Claim for breach of contract
Mr Hassan asked to raise a new point of law as to whether the Tribunal would have jurisdiction to hear his breach of contract claim on the basis that the dismissal took place in England. The EAT refused Mr Hassan permission to run the point because it would have required a further factual enquiry into whether Mr Hassan had read the dismissal letter in England. In the circumstances the breach of contract claim failed.
The majority of recent cases on this area have involved employers based in the UK with their staff overseas. In contrast this case concerned an employer based in Singapore. The case highlights an additional hurdle employees have to overcome in these circumstances to bring a claim for unfair dismissal in the English Tribunals.
We anticipate there will be further decisions on the applicability of Bleuse. This is a question that may need to be referred to the European Court.
Simon appeared as a junior advocate in the Supreme Court case of Duncombe -v- DCSF – a case determining the rights of overseas employees to bring claims under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and for unfair dismissal.