When considering a claimants unfair dismissal case, the issue as to whether the Employment Tribunal (“ET”) has territorial jurisdiction is increasingly being raised at the Pre-Hearing Review stage. 

As a consequence of s.32 (3) of the ERA 1999, the ERA 1996 now contains no express geographical limitation. The extent to which the ET is open for a global gathering of those wronged employees was considered by the House of Lords in Lawson –v- Serco [2006] UKHL 3. Lord Hoffmann, giving the leading opinion, indicated that s.94 (1) of the ERA did not have worldwide application. The essential principle was that the employee must be in “employment in Great Britain”. This should depend on whether the employee was employed in Great Britain at the time of dismissal rather than what was contemplated at the time of making the contract, perhaps many years earlier. Their Lordships accepted that this principle would create difficulties for a peripatetic employee (e.g. airline pilots). This employee will enjoy the right given by section 94(1) if, when looking at how the employment contract was in fact being operated at the time of his dismissal, he was based in Great Britain. The third class considered was what might be called “expatriate employees”; an employee who works and is based abroad may come within the scope of British labour legislation.

Two characteristics will ordinarily be required:

(1) The employer must be based in Great Britain; and

(2) Either (a) The employee must be posted abroad for the purposes of a business carried on in Great Britain and in a representative capacity for the business in Great Britain

or (b) The employee is operating within what amounts for practical purposes to an extra-territorial British enclave in a foreign country.

While Parliament’s amendment appeared at first sight to have extended the territorial jurisdiction of the ET, the House of Lords have considerably curtailed its application. The consequence is that the issue of jurisdiction needs to be considered even where a claimant spends only a short period outside of the country.