What are the employment rights of UK-based civilians (UKBCs) personnel working on British military bases in Cyprus, Germany and Gibraltar?
Despite the Court of Appeal decision of Serco Ltd v Lawson, in which it was held that an employee posted to Ascension Island could not sue for unfair dismissal, employees working for SSAFA Forces Help (Soldiers, Sailors And Airmen’s Families Association) abroad are not completely without employment protection.
In the UK, the Contracts (Applicable Law) Act 1990 enacts the Rome Convention, which deals with cross-border jurisdiction issues. The Act (and the Convention) provides that a choice of law provision in a contract of employment shall not deprive an employee of the protection afforded to them by the mandatory rules of law of the country where the employee performs their duties or lives.
This means that the choice of law clause in the contracts of employment of SSAFA UKBC employees would not prevent them relying on any employment legislation that provides employment protection to employees in, say, Germany or Gibraltar. The degree of protection will, of course, be greater in countries that have legislation offering protection against dismissal over and above any rights arising out of their contracts of employment.
It should also be remembered that the Serco decision will not apply to any claims employees might have under their contracts of employment. For example, if an employee is dismissed without notice in circumstances that amounted to wrongful dismissal, the employee may still be able to bring a claim in the civil courts for breach of contract.
Under the sex and race discrimination legislation, an employee working abroad can claim discrimination “unless the employee does his work wholly outside Great Britain”. The EAT examined the meaning of this phrase in the case of Waggar (&ors.) v Ministry of Defence, concerning three army officers posted abroad, and concluded that:
- if the person being discriminated against (abroad) is either someone who used to work in Britain but has not done so for many years, or who is employed under a contract that contemplates they might be employed in Britain, but in fact they never were, then the tribunal has no jurisdiction to hear any complaint of discrimination
- an Army chaplain who, while based in Germany went to Britain for a day to attend a funeral (which was held to be ‘work’), should not be allowed to claim discrimination in the tribunal as this would offend against the de minimis principles of the law
- in the case of an overseas officer who attended training courses in Britain during the year, if this was ‘work’, then she did not do her work ‘wholly’ outside Britain, so the tribunal would have had jurisdiction to hear her complaints.
In determining what was ‘work’, the EAT concluded that important factors were the contractual position, the content of the work, its duration and regularity.
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