Appeal No.	 EAT/879/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 November 1999

Before
HIS HONOUR JUDGE WILKIE
MR J C SHRIGLEY
MR G H WRIGHT MBE

MR R A EVANS	APPELLANT

SDL INTERNATIONAL 	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R A EVANS
IN PERSON	

		JUDGE WILKIE:		This is an appeal by Mr Evans against the decision made by the Reading Employment Tribunal.  The decision was dated the 18th June this year, the hearing having taken place on 4th June.  The tribunal decided that it had no jurisdiction to entertain his complaint of unfair dismissal by SDL Limited by virtue of section 196 of the Employment Rights Act 1996.  

2.	We have been greatly assisted by Mr Evans both by his notice of appeal and his courteous, realistic and sensible oral submissions to us.   Section 196 of the Employment Rights Act 1996 provides that, inter-alia, the unfair dismissal provisions of the act do not apply to employment where under the employee’s contract of employment, he ordinarily works outside Great Britain.  

3.	The position is that up until January 1998 Mr Evans was employed by a UK company based in the UK in a position which did require him from time to time to work outside the UK.  There came a time in late 1997, where the suggestion was made, and he considered and ultimately agreed, to move to the United States to work there exclusively.  The agreement recording this arrangement is contained in a letter dated 28th January 1998 which confirm an agreement made at a meeting on 14th January 1998.  That provided that Mr Evans would travel to the US on 31st January as an SDL employee, that he would remain on the UK contract training for his US position until his visa came through.  On receipt of his US visa it said “your UK contract will be terminated and you will become a US employee on SDL/US payroll.  You will remain as an SDL/UK employee on secondment”.  It then set out a number of provisions as to terms and indicated that he would receive a US contract which would be governed by US law.  It went on to conclude that if Mr Evans were to wish to return to SDL/UK and there were a suitable position available for him, and there had been no break in his employment with SDL, that his employment both under the UK and US contracts would count for the purposes of the period of continuous employment.   

4.	It also provided that if the visa application were unsuccessful SDL would hold his current position open for a period of 30 days from the 31st January.  In fact, the visa application was made, for the maximum period for which it could be made, namely 3 years, and it was granted for the maximum period which at the time, for policy reasons which Mr Evans has explained to us, the US authorities were prepared to give namely 12 months.  It therefore follows that upon that event happening Mr Evans’ UK contract was terminated and thereupon he became employed under the US contract and it was for work exclusively in the United States.  

5.	Mr Evans plainly has a considerable sense of unease and grievance about the way in which matters then developed.  The contract document with which he was issued appears, (we haven’t actually seen it but we take it from Mr Evans), to fall very far short of the type of protection that one would normally find in a United Kingdom contract of employment, underpinned as it is with the statutory requirements.   In particular, although it was permanent employment in the everyday sense, it could be terminated at any time without notice for any reason or none.  This, Mr Evans contrasts with the United Kingdom position where, whilst any contract of service may be terminated without any notice, there are consequences which attach in terms of damages for failure to give due notice either contractual or statutory.   

6.	Mr Evans having expended a great deal of his money in going out to the US felt that he had little option but to soldier on notwithstanding his misgivings about these particular contractual arrangements.   On the 23rd November, the US company terminated his employment with effect at the latest from the 27th January 1999.  It indicated that it would not be applying for a renewal of his visa which was, of course, the sine qua non of his employment in the US.  

7.	The decision to dismiss him on the 23rd November was recorded in a letter sent to him and it gives a reason which Mr Evans doesn’t accept as genuine.  In any event he says that they weren’t obliged to give any reason.  It is clear that thereafter they made some sort of offer to Mr Evans for employment in the UK but it was communicated in terms which were, in Mr Evans view, insulting and in circumstances where those insulting comments became common currency. He felt unable, for that reason, to accept that offer.

8.	The employment tribunal rehearsed all these matters and concluded that this was a case in which the initial contract of employment was varied and ceased to be a UK based contract in which there was a posting to a different country but with effect from the 31st January 1998 it became a contract of employment under which the Applicant was to be working permanently in the United States.   Having regard to the statutory provision, namely under the employee’s contract of employment did he ordinarily work outside Great Britain, the employment tribunal concluded that if the only conclusion to which it could come was that by that variation of contract the position became such that under his contract of employment he ordinarily worked outside Great Britain.  It had ceased to be a contract where his base was the UK and one should look at the totality of the employment period, rather than any particular period within the totality of the employment period in determining whether he ordinarily worked outside the UK.

9.	In the light of what the tribunal found we cannot fault them with this analysis that there was a new contract or a varied contract under which he was employed exclusively to work in the United States.  We cannot find anything to criticise in the conclusion to which the employment tribunal came as a matter of law on the evidence that was before it and therefore this is a case in which, not withstanding Mr Evans undoubted sense of grievance for which perhaps he had some grounds, this particular issue there is no seriously arguable case to go forward to a full hearing of the appeal.  Accordingly, we dismiss this appeal at this stage.