Appeal No. EAT/0416/00 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 November 2002

Before
THE HONOURABLE MR JUSTICE ELIAS
MR D NORMAN
MR J C SHRIGLEY

MR J R PITMAN	APPELLANT

FOREIGN & COMMONWEALTH OFFICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS C LEWIS
(of Counsel)
Instructed by:
North Lambeth Law Centre
14 Bowden Street
Kennington
London SE11 4DS 	
For the Respondent	MR PHILIP COPPEL
(of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London SW1H 9JS	

THE HONOURABLE MR JUSTICE ELIAS

1	This is an appeal from the decision of the Employment Tribunal in London (South) that the Appellant was not unfairly dismissed.  The Appellant was in fact one of four Applicants whose cases were heard together but he is the only one now appealing that decision.

2	The background facts can be summarised as follows.  The Appellant was employed by the Respondent as an Overseas Security Officer (“OSO”), carrying out security duties at United Kingdom diplomatic posts abroad.  Most officers of this nature were previously non-commissioned officers of the armed services and had been cleared to deal with top secret matters.  They were described as UK-based, but on any view they spent a very significant amount of their time working in foreign diplomatic missions.  They were frequently moved from one posting to another in order to prevent them from being suborned by foreign intelligence services.  Their tasks included such matters as administration, security locks and keys, monitoring printouts from intruder detection systems, managing combination locks and responding to alarm settings.

3	Following the end of the Cold War a report was carried out by a team headed by Sir Anthony Harris, a diplomat.  “The Harris Report”, as it became known, was published on 25 February 1994.  It recommended a reduction in the number of overseas security staff by the end of the decade from 187 to fewer than 60.  The FCO responded to the report by concluding that the number should be reduced to 78 but that in some cases locally engaged security officers (“LESOs”) could be recruited to carry out such security duties as remained once the OSOs had been withdrawn.  These locally engaged security officers were not required to be UK citizens, they received a lower level of security clearance than the OSOs and they enjoyed no diplomatic immunity.
4	On 2 February 1994 (that is, just prior to the publication of the Harris Report), the FCO and the Diplomatic Service Trade Union Side concluded a redundancy agreement under Whitley Council procedures.  This was applicable to all FCO non-industrial staff, such as the Appellant.  It contained matters that are commonly found in an agreement of this kind, including provisions about taking steps to maintain job security in the event of possible redundancy and also about consultation.

5	In May 1994 the FCO Chief Clerk notified the OSO group of the existence of a pre-redundancy situation.  Attempts were made to attract volunteers for redundancy.  This led to some reduction in numbers but not sufficient as far as the Respondent was concerned.  Accordingly, it became necessary to effect further dismissals in order to achieve the staffing levels sought by the FCO in response to the Harris Report.

6	28 officers were dismissed, including the Appellant.  22 of these appealed against their dismissals to the Diplomatic Service Appeal Board.  In two individual cases the Board recommended that their dismissal should be reconsidered but the appeals of the others failed.  The Appellant had in fact been dismissed with effect from 15 July 1996 and at that particular time he was employed in the diplomatic mission in New York.

7	The Employment Tribunal concluded that the Appellant had been dismissed by reason of redundancy and that in all the circumstances the dismissal had not been unfair.  

8	The Appellant appealed against that decision and there was a Preliminary Hearing held by this Tribunal, Mr Recorder Langstaff QC presiding, on 25 July 2000.The Tribunal did not give leave in relation to the fairness argument but considered that it was arguable that the Employment Tribunal had erred in its approach to whether or not there had been a redundancy.  
9	In addition, however, the Tribunal raised concerns as to whether the Employment Tribunal had properly exercised its jurisdiction in this matter.  Both Appellant and Respondent had urged upon the Tribunal that it did have jurisdiction and the Tribunal went on to hear the substance of the matter without deciding whether the Respondent was right to concede that point.

10	This Tribunal had before it at the Preliminary Hearing a letter from the Chairman of the Employment Tribunal in which he indicated:

“that he had raised the question of jurisdiction with Counsel but was told by the Respondent that they did not wish to disturb the established practice of the Employment Tribunals determining unfair dismissal claims brought by UK-based crown employees serving abroad”.

The Employment Appeal Tribunal directed that the question of jurisdiction should be addressed at the full hearing.

11	When the case originally came for a substantive hearing the matter came before another division of this Tribunal on 14 November 2001 with Judge Peter Clark presiding.  The Respondents contended, on that occasion, that the question as to whether or not there had been a redundancy had in fact been conceded by the Appellant at the Employment Tribunal and accordingly that it was not now a proper matter to be reopened.  The nature and extent of that concession in fact seems to have been inextricably linked with the question of jurisdiction, as we will indicate more fully shortly.  This Tribunal considered that in the circumstances it should receive affidavits from the Appellant and the Respondents as to their understanding in relation to the alleged concession and then obtained the Chairman’s comments on those affidavits.  

12	It is now plain that there was some genuine confusion about the nature of this concession but the Respondents, through Mr Coppel, have very properly, and in our view realistically, accepted that in the circumstances, having seen the explanations of the Appellant and the comments of the Chairman, that it was not intended by the Appellant to make a formal concession on the question of redundancy.  The Appellant’s case had been that the work that he had been employed to do in the New York mission was carried on in substantially the same way by his LESO successor.

The Alleged Link between Jurisdiction and Redundancy

13	We should here deal with the way in which the Tribunal approached the question of redundancy.  The definition of redundancy is contained in the Employment Rights Act 1996 at section 139.  The relevant provision is section 139 (1) (b) (ii) which is as follows:

(1)	“For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of dismissal if the dismissal is wholly or mainly attributable to: - 
(b)	the fact that the requirements of that business: - 
(i)	for employees to carry out work of a particular kind, or
(ii)	for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.”

14	The basis on which the Tribunal found that there was a redundancy is set out in paragraph 8 of its decision.  Having paraphrased that definition it then concluded as follows:

8	“Although their duties were, for the most part, carried out abroad as UK based employees the place where the Applicants were employed was the United Kingdom and, indeed, by section 196 (3) of the 1996 Act the Applicants can bring a claim of unfair dismissal only if they ordinarily worked inside Great Britain.  The FCO replaced security officers who had been employed inside the UK with security officer who were employed outside the UK, and the Respondents’ requirement for security officers at the place where the UK based security officers were employed therefore diminished.  Accordingly, the Applicants were dismissed because they were redundant.”

15	We should add that before the Tribunal there were two grounds on which the Respondents were submitting that there was no redundancy.  First they were saying that the work being carried out by the LESOs was not in fact work of the same kind as had been carried out by the Appellant.  Accordingly, they submitted that, even if the place of work was the same as between the Appellant and his successor, nonetheless there was still a redundancy because there was a diminution in the need for employees to carry out that particular kind of work.

16	In the alternative, they were submitting that, in any event, the place where the Appellant was employed was not the same place as that in which the successor was employed, and therefore there was a redundancy on that account.  

17	It is common ground that the Tribunal did not resolve the first issue and indeed they did not hear full evidence on that point, precisely because they found in the Respondents’ favour on this second issue.

18	Given that the Appellant was at the relevant time of termination actually working in New York, what then was the basis of the Tribunal’s conclusion that he was employed to work in the UK?  The answer to that is found in section 196 of the Employment Rights Act 1996.  Sub-section (2) provides:

(2)	“The provisions to which this subsection applies do not apply to employment where under the employee’s contract of employment he ordinarily works outside Great Britain.”

By sub-section (3), sub-section (2) is applied, amongst other things, to claims for unfair dismissal.

19	It seems clear from the decision of the Employment Tribunal that the way in which they reasoned was this.  On the basis that they could exercise jurisdiction, it was on the assumption that the employee was not ordinarily working outside Great Britain.  If he was not working ordinarily outside Great Britain it followed that he had to be working ordinarily in Great Britain.  There is authority to the affect that he cannot be working both inside and outside Great Britain, see Wilson v Maynard Shipbuilding Consultants [1978] ICR 376.

20	Accordingly, the Tribunal reasoned that his place of work must be in the United Kingdom.  Then transposing, as it were, that finding in section 139, it concluded that the place of work where he was employed was different from the place of work where his successor was employed.  His place of work, for the purposes of section 139 should be treated as Great Britain, whereas for the successor it was New York.

21	Accordingly, its conclusion on the question of whether or not there was a redundancy was directly related to the assumption about place of work which it considered it had to make for the purposes of assuming jurisdiction.  It appears that during the course of the hearing it had indicated its preliminary view to the Applicants, including the Appellant, about the impact that a finding of jurisdiction would have on the redundancy argument.  It was in that context that the Applicants conceded that they had been made redundant.  In other words, the Tribunal was effectively telling them that its view was that the basis on which it could exercise jurisdiction dictated that they would have to be treated as redundant within the statutory definition.  The Applicants, being unrepresented, conceded in effect that if that was the law, well, they had to accept that.  Plainly, however, if that is not the law and the Tribunal had erred in that approach, then there was no formal concession about redundancy at all, as the Respondents have accepted.

Was There a Redundancy?

22	We will deal with this question before looking at the issue of jurisdiction because if there was a redundancy, and the Tribunal were right in the conclusion that they reached, then that is in effect the end of the matter, whether the Tribunal properly exercised jurisdiction or not.

23	Mr Coppel for the Respondent seeks to support the decision of the Tribunal effectively for the reasons that it gave.  He submits that it would be absurd for an employee, for the purposes of jurisdiction, to be considered to be ordinarily working within Great Britain and yet for the purposes of the definition of redundancy in section 139 to be considered to be employed in a place outside Great Britain.  He submits that there should be harmony between the relevant statutory provisions whilst accepting that the language in the two relevant provisions is different; one referring to place of work and the other to a place where somebody ordinarily works; nonetheless, he submitted that the approach of the Tribunal on this matter was plainly correct.

24	Miss Lewis for the Appellant submits that the Tribunal erred in its approach.  She says that section 139 (which is directed to whether or not there is a redundancy) and section 196 (which is directed to jurisdiction) are concerned with quite separate and distinct issues.  The Rules which may be applicable for determining whether or not a Tribunal should be seized of a claim should be construed quite independently of those which determine whether a particular employee has been made redundant.  The language is different and the purpose of the provisions is different.

25	We have had regard to the leading authority on the question of place of work in section 139, which is the decision of the Court of Appeal in High Table Ltd v Horst [1997] IRLR 513.  In that case the certain employees were employed as Silver Service waitresses providing catering services for companies and firms in the City of London.  They all worked for one particular client, Hill Samuel.  Their work at Hill Samuel came to an end when that firm made cuts in its catering budget.  They presented complaints of unfair dismissal and alleged that they had been unfairly selected for redundancy.

26	The question arose as to whether or not they were redundant and it was contended on behalf of the employees that they were not redundant because the place where they were employed under the relevant statutory definition meant the place where they could be required to work under their contracts of employment.

27	The Court of Appeal rejected this submission.  Peter Gibson LJ giving a judgment with which Evans LJ and Hobhouse LJ concurred, referred to a decision of this Tribunal in Bass Leisure v Thomas [1994] IRLR 104 and continued as follows:

“I am in broad agreement with this interpretation of the statutory language.  The question it poses – where was the employee employed by the employer for the purposes of the business? –  is one to be answered primarily by a consideration of the factual circumstances which obtained until the dismissal.  If an employee has worked in only one location and whose contract of employment for the purposes of the employer’s business, it defies common sense to widen the extent of the place where he was so employed, merely because of the existence of a mobility clause.  Of course, the refusal by the employee to obey a lawful requirement under the contract of employment for the employee to move may constitute a valid reason for dismissal, but the issues of dismissal, redundancy and reasonableness in the actions of an employer should be kept distinct.  It would be unfortunate if the law were to encourage the inclusion of mobility clauses in contracts of employment to defeat genuine redundancy claims.  Parliament has recognised the importance of the employee’s right to redundancy payment.  If the work of the employee for his employer has involved a change of location, as would be the case where the nature of the work required the employee to go from place to place, then the contract of employment may be helpful to determine the extent of the place where the employee is employed.  But it cannot be right to let the contract be the sole determinant, regardless of where the employee actually worked for the employer.  The question what was the place of employment is one that can safely be left to the good sense of the Industrial Tribunal.”

In short, this case confirms that the proper approach to the question of where somebody is employed is to determine that issue as a question of fact, in the light of the evidence before the Industrial Tribunal.

28	In this case we are satisfied that the Tribunal did err in its approach to this issue.  We accept the submissions of Miss Lewis.  It seems to us that the question of whether or not the Tribunal has jurisdiction, and the determination in that context of whether somebody is ordinarily working abroad or within Great Britain, does not determine the question of where somebody is employed for the purpose of section 139.  We consider that that is a matter that the Tribunal must determine in the light of the approach indicated by the Court of Appeal in High Table v Horst.

29	It follows that unless, in this case, the Tribunal ought not to have exercised jurisdiction at all, the matter will need to be remitted to the Industrial Tribunal.  We have wondered whether to substitute our own view for the Tribunal on this question but in any event the issue will have to be remitted in order to determine the still-outstanding question of whether the nature of the work being carried out by the successor employees is the same as that that formerly carried out by the Appellant.

30	So we turn to the issue of jurisdiction.  It is common ground that an Industrial Tribunal cannot, by concession, accept jurisdiction.  We initially formed a preliminary view that on the material we had so far seen it appeared that the Tribunal was wrong to exercise jurisdiction because it appeared that the employee was in fact ordinarily working abroad.  

31	The way in which the courts approach that question is set out by the Court of Appeal in the case of Wilson v Maynard Shipbuilding Consultants [1978] ICR 376 (to which we have made reference), which case was followed by another division of that court in Todd v British Midland Airways Ltd [1978] ICR 959.

32	We were referred to a brief passage of the judgment of Megaw LJ, giving the judgment of the court in the Wilson case, when he said this (page 386):

“If the contract by its express or implied terms requires that the employee should do his contractual work wholly, or substantially wholly, in Great Britain, the answer will normally be simple.  So, conversely, if under the contract the contractual work has to be carried out wholly or substantially wholly outside Great Britain.  This will dispose, quite simply, of many cases.  
But what is to happen if, as in the present case, an implied term of the contract leaves it to the employer’s discretion as to whether the work should be carried out wholly in Great Britain or wholly outside Great Britain or for some period or periods in one place and for another period or other periods in other places?”

33	As we have indicated, on the face of it the employee here had worked almost exclusively outside the jurisdiction and he was described as an Overseas Security Officer.  However, during the course of the hearing we were shown the contract in this case and paragraph 10 includes a mobility clause which provides as follows:

10	“As an Overseas Security Officer you must be fully mobile and be prepared to serve anywhere in the United Kingdom or abroad.”

34	On the face of it that would seem to suggest that it was envisaged by the contract that, notwithstanding his title, this Appellant could have been required to work in the United Kingdom.  There are some indications to the contrary.  We were referred to clause 5 of the contract for example, and Mr Coppel for the Respondent indicated that it would indeed be the Respondents’ case that the intention here was plainly only to employ these particular officers abroad and that the use of what he submitted was in effect the standard form contract, should not change that position.
35	We think he has some difficulty in running that argument in the light of the clear provision in paragraph 10 but we have concluded that it would be wrong for us to determine that case against him at this stage.  Since the matter in any event has to go back to the Tribunal on the question of whether or not there was a redundancy, it will be open to the Foreign & Commonwealth Office at that stage, if it wishes to raise this question of jurisdiction, to do so and to adduce such evidence as it considers it needs to do at that stage.

36	It follows that we do not consider that we can conclude the Employment Tribunal ought not to have exercised jurisdiction.  We do consider that the Tribunal erred in law in its approach to the question of whether or not there was a redundancy and we have to remit the matter for that to be determined.

37	We should however add this.  We have all of us on this Tribunal been very concerned that we are now some six and a half years since the dismissal of the Appellant and this matter is continuing to be dragged through the courts.  The fundamental question, as it seems to us, we have to say, is whether or not the employee was treated fairly or unfairly and there has been a ruling on that matter.  This Tribunal did not permit it to be appealed at the Preliminary Hearing and there has been no appeal against that.

38	It may be, but we say no more than this, that the Respondent will wish to seek to amend its current Notice of Appearance to include, as an alternative to the reason being redundancy, that it is some other substantial reason.  We should not anticipate whether or not that may succeed but it was indicated to us by Mr Coppel that but for the concession, that argument may well have been advanced.

39	It may be that at the end of the day it matters little whether the reason is redundancy or some other substantial reason; the substance of the dismissal has been handled fairly.  That is something about which the Appellant may wish to reflect before deciding to incur yet further time and costs in lengthy proceedings.  We are told that one of his objectives is to demonstrate that he was unfairly dismissed but, as we have indicated, it does seem to us that in terms of the substance of the matter the Tribunal has held that the Respondent dealt with this case fairly.  If he is to succeed on this it would be on the rather technical matter, as it seems to us at the moment at least, that the Respondent may not have pleaded the various ways in which it could properly put its case.  We say that without wishing in any way at all to hint as to what we think the outcome of the finding on redundancy should be.  Plainly, that is going to be a matter for evidence before the Industrial Tribunal.

40	The Respondents wish to argue most strongly, as we understand it, that apart from the place of work issue, in any event, the nature of the work being carried out by the successors is significantly different in various respects than that originally being carried out by the Appellant.

41	We will remit it to the same or another Tribunal.  But with reluctance we send this back but we do so on the basis that we hope it can be heard very quickly so these proceedings can be brought to an end.  We do think it may be sensible to look at the finances at the end of the day and see whether there is anything that maybe gained by pursuing this appeal further.