Unfair Dismissal Law - Set to Conquer the World?

Author:Mr Gary Freer
Profession:Barlow Lyde & Gilbert

Airlines have often found themselves at the cutting edge of the law of unfair dismissal - and particularly on issues which arise concerning the jurisdiction of UK Employment Tribunals to hear claims of unfair dismissal brought by employees who may in practice spend little or even no part of their working day within the UK.

Following the decision of the Court of Appeal in Carver v Saudi Arabian Airlines the UK Government took the radical step of abolishing altogether section 196 of the Employment Rights Act (ERA) which had provided that the law of unfair dismissal did not apply in relation to employment during any period when the employee is engaged in work wholly or mainly outside Great Britain.

So how far does the jurisdiction now extend? The recent Employment Appeal Tribunal (EAT) decision in Lawson v Serco (not involving an airline) suggests that it is virtually unlimited.

Take a hypothetical example. A US based airline has a branch office in the West End of London, mainly for marketing and sales purposes. Some of the airline's cabin staff will sometimes pass through UK airports. Most of the airline's staff - all of whom have employment-at-will agreements which are expressly made subject to the law of New York - have never been to the UK, let alone on business.

It now seems that any one of the airline's staff - even those working wholly outside the UK - could, if dismissed, bring a claim in the UK Employment Tribunal for unfair dismissal which (due to the nature of employment at will and the lack of any equivalent to the UK's unfair dismissal legislation) would not be available in the USA.

The EAT has now said that it would make no difference that:

the employment agreement says that it is subject to New York law; or

that this employee has no connection with the UK other than by working for an employer which happens to have a small branch here; or

that it would be more convenient and sensible for the dispute to be heard in the country in which the dispute arose and where the witnesses who would have to give evidence are located.

This result was not what the UK...

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