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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Botham v. Ministry of Defence [2004] UKEAT 0503_04_1211 (12 November 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0503_04_1211.html Cite as: [2004] UKEAT 0503_04_1211, [2004] UKEAT 503_4_1211 |
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At the Tribunal | |
On 1 November 2004 | |
Before
THE HONOURABLE MR JUSTICE BEAN
MS J P DRAKE
MR F MOTTURE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
LORD JUSTICE CLARKE
and
For the Appellant | MR FREDERIC REYNOLD QC (of Counsel) Instructed by: Messrs Dean Wilson Laing Solicitors 96 Church Street Brighton East Sussex BN1 1UJ |
For the Respondent | MRS WENDY OUTHWAITE (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS |
THE HONOURABLE MR JUSTICE BEAN
"8. In our judgment, consideration of this issue must start with the Section in the 1996 Act creating the statutory right relied on. This case is concerned with the statutory right in Section 94(1) of the 1996 Act not to be unfairly dismissed. Section 94(1) provides: "an employee has the right not to be unfairly dismissed by his employer". The question is: what are the employments covered by the section? The answer in our judgment is straightforward though it may be difficult to apply in some cases: employment in Great Britain.
22. We are in no doubt that the employment tribunal had no jurisdiction to consider a claim for unfair dismissal by the applicant. On the evidence he was not employed in Great Britain within the meaning of Section 94(1) of the 1996 Act. He was employed on Ascension Island however strong were his and his employers' British connections. The test applied by the appeal tribunal is not the correct one. Save where there is expressed provision to the contrary, the act covers employment in Great Britain – that is its "legislative grasp".
28. We accept the need for a degree of flexibility in applying the test. The Posted Workers Directive provides protection in a jurisdiction visited. Protection in a jurisdiction from which there is a temporary absence is not necessarily excluded and the existence of the Directive points to the need for a degree of flexibility in where the employment is. A dismissal during a single, short absence from Great Britain, for example, would not normally exclude the protection of the 1996 Act. In most cases it will not be difficult to decide whether the employment is in Great Britain; borderline cases will depend on an assessment of all the circumstances of the employment in the particular case. The residence of the parties may be relevant to where the employment is, but the emphasis must be upon the employment itself. That, we repeat, is the legislative grasp of the 1996 Act."
"As a general rule the only cases in which decisions should be held to have been giver per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis, which is an essential feature of our law, be, in the language of Lord Greene MR, of the rarest occurrence. In the present case it is not shown that any statutory provision or binding authority was overlooked, and while not excluding the possibility that in rare and exceptional cases a decision may properly be held to have been per incuriam on other grounds, we cannot regard this as such a case. As we have already said, it is, in our judgment impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which the judgments were based and to say of it "here was manifest slip or error". In our judgment acceptance of the Attorney General's argument would necessarily involve the proposition that it is open to this court to disregard an earlier decision of its own or of a court of co-ordinate jurisdiction (at least in any case of significance or complexity) whenever it is made to appear that the court had not on the earlier occasion had the benefit of the best argument that the researches and industry of Counsel could provide. Such a proposition would, as it seems to us, open the ways to numerous and costly attempts to re-open questions now held to be authoritatively decided".
"The Secretary of State submitted to Moses J, and submits to us, that the difference in treatment of Strasbourg claimants and domestic claimants does not fall within Article 14 because Article 14 only applies to discrimination on the grounds of "a personal characteristic (status)" by which persons or groups of persons are distinguishable from each other": Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711, 733, para 56. Moses J accepted this submission. Mr Goudie submitted to us that the Kjeldsen case was outdated jurisprudence and referred us to the very recent decision of this court in Michalak's case in support of this submission. We share the view expressed by Brooke LJ in that case [2003] 1 WLR 617, 628, para 34 that Kjeldsen's case appears to have been superseded by more recent Strasbourg authority. We can see no reason in principle why litigants in the English courts should not be entitled to complain under Article 14 if, on the ground of their status as litigants in that court, they are treated less favourably than litigants before the Strasbourg court in a manner which engages one of the other Convention rights."
"The list of grounds in Article 14 is not exhaustive and necessarily includes each of the specifically proscribed grounds as well as "other status". The European Court of Human Rights has interpreted "other status" as meaning a personal characteristic: Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711, 733, para 56…… On the other hand, the proscribed grounds in Article 14 cannot be unlimited, otherwise the wording of Article 14 referring to "other status" beyond the well established proscribed grounds, including things such as sex, race or colour, would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of Article 14. It is, therefore, necessary to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic within the meaning of Article 14."