Appeal No. UKEATS/0049/08/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

			At the Tribunal
		            On 21 April 2009

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

DOLPHIN DRILLING PERSONNEL PTE LTD 	APPELLANTS

MR ALAN WINKS	FIRST RESPONDENT
DOLPHIN DRILLING LTD	SEC0ND RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants	MR B NAPIER
(One of Her Majesty’s Counsel)
Instructed by:
Messrs MacKinnons Solicitors
14 Carden Place
Aberdeen 
AB10 1UR 	
For the First Respondents	MR M O’CARROLL
(Advocate)
Instructed by:
Messrs Atteys Solicitors
Richmonds House
White Rose Way
Doncaster 
DN4 5JH
	
For the Second Respondents	No appearance or representation by or on behalf of the Second Respondent	

SUMMARY

Jurisdiction in unfair dismissal.  Claimant was employed by the respondents, a Singapore company, as a storeman working in the offshore industry.  He worked on an oil rig registered in Singapore operated by a company registered in the UK when it was in the Gulf of Mexico and, latterly, when it was off the coast of Nigeria.  He was dismissed and sought to pursue a claim of unfair dismissal before the Employment Tribunal in Aberdeen.  Tribunal found that it had jurisdiction on the basis that there was a substantial connection between Great Britain and the employee/his employment.  On appeal, the EAT found that the Tribunal had applied the wrong test, under reference to Lawson v Serco Ltd [2006] ICR 250.  It had erred in concluding that it had jurisdiction.  Claim dismissed. 

THE HONOURABLE LADY SMITH

INTRODUCTION 
1.	This is an appeal by Dolphin Drilling Personnel Pte Limited (‘DDPPL’), a Singapore company, the employers, against a decision of the Employment Tribunal sitting at Aberdeen.  The Chairman was Mr R G Christie sitting alone, and his judgment was registered on 27 May 2008.  He found that the Tribunal had jurisdiction to consider Mr Winks’ complaint of unfair dismissal.  

2.	Dolphin Drilling Limited (‘DDL’), a UK registered company, were first respondents before the tribunal but were not represented at the appeal.

3.	There were two issues before the Tribunal.  Firstly, the claimant asserted that DDL was his employer when he was dismissed.  DDL and DDPPL both asserted that the latter was his employer.  At paragraph 78 of its judgment, the Tribunal found that DDPPL was the claimant’s employer for the purposes of the Employment Rights Act 1996.  That finding is not appealed against.  Secondly, the claimant’s case was that, on the basis that was DDL was his employer, the Tribunal had jurisdiction to entertain his complaint of unfair dismissal.  The Tribunal determined that issue in favour of the claimant and found that it had jurisdiction. 

BACKGROUND 
4.	The claimant is a British citizen and his home is in Doncaster. 

5.	DDL is a company which is registered in the UK and has its principal office in Aberdeen.  It is in the oil drilling business.  It manages and operates rigs including one called the Bulford Dolphin.  That rig is not registered in the UK.  It is registered in Singapore. 

6.	The claimant was employed by DDPPL, from May 2004, to work as a storeman on the Bulford Dolphin.  He worked on it in the Gulf of Mexico and off the coast of Nigeria, which is where it was when he was dismissed. 

7.	DDPPL is a company registered and located in Singapore.  It has an office in Singapore with a Director, an HR Manager and four HR co-ordinators.  Its business was and is to provide crews for oil rigs on a global basis for companies within the Fred Olsen Group, including DDL.  As I have indicated, the Tribunal was satisfied that the claimant was employed by DDPPL, not by DDL.  At paragraph 72, the Tribunal found:

“…those persons involved, particularly those in Mr Clelland’s HR Department in DDL in Aberdeen have, in the main, been scrupulous in their attention to stating that things concerning the employment relationship (such as alterations to the amount of allowances etc), have been done in the name of DDPPL, although the actual decisions on such financial matters were taken by, for example, Mr Clelland of DDL in Aberdeen.  That is fairly obvious, since the funding for all these things came out of the DDL business and was merely channelled through Singapore.  In the latter stages, almost all communications with the claimant in relation to matters such as travel arrangements were by or with someone at DDPPL in Singapore, all of which strengthens my view that they were merely a form of personnel department for DDL.” 

8.	Notwithstanding that hint of a lack of preparedness to accept that the contract of employment between the claimant and DDPPL was a real one and not a sham, the Tribunal had, earlier, at paragraph 71, accepted:

“Unlike some of the other arrangements which have been observed in the Employment Tribunal in Aberdeen however there was indeed an apparent substance to the organisation which was DDPPL.”

noted that, latterly, personnel functions were being conducted by “real people in Singapore” and, after having considered the relevant authorities, including James v London Borough of Greenwich [2008] IRLR 302, found that DDPPL were the claimant’s employers. 

9.	In the part of its judgment where the Tribunal considers the second issue, that of jurisdiction, it sets out lists of factors inherent in the claimant’s circumstances, at paragraphs 116 and 117.  The paragraph 116 list is said to be of factors which support the existence of a connection with Great Britain and the paragraph 117 list is said to be of factors pointing away from such a connection.  In paragraph 116, it refers to the following:
“
o	The claimant was a British national with his normal stable residence in Doncaster.  

o	His earnings in the relevant employment were paid to him in sterling in Britain and on these he paid UK income tax and employee’s national insurance contributions.

o	His pay was administered by a company (Activepayroll) in Aberdeen.  Any dispute as to allowances and a decision on what he should be paid for additional duties were determined by DDL in Aberdeen 

o	All of his work was carried out in and for the purposes of the business of DDL, a company registered in the UK and with its head office and business headquarters in Aberdeen where operational decisions were taken.  No separate entity was created to conduct operations abroad.

o	Every four weeks he travelled to and from work from and to his home in Doncaster.

o	His movements to and from the rig were determined by DDL through Mr Dennis Henry of DDL. 

o	All of his training took place in Aberdeen. 

o	His medical examinations and certification were conducted in the UK. 

o	Many of what you might call personnel functions were conducted in Aberdeen, including, in particular, the disciplinary process which resulted in his dismissal

o	His visa application for Nigeria showed his ‘official address’ as that of DDL in Aberdeen

o	The contract with DDPPL provided for the application of English Law and the exclusive jurisdiction of the ‘English Courts’.  There was no intention to remove from the claimant any rights or protections under UK employment law (Mr Clelland’s evidence).”

The paragraph 117 (marked erroneously as paragraph 113) list was:
 “
o	The claimant worked wholly outside Great Britain, not only at the time of his dismissal but also for a number of years previously.

o	The drilling work in which he was engaged at the material time was conducted off the coast of Nigeria.

o	His written contract of employment showed the employer as DDPPL, a company in Singapore.

o	His travel arrangements were made by staff of DDPPL from Singapore.

o	His letter of dismissal was issued by DDPPL from Singapore and his appeal was determined after written representations by Mr Sydness of DDPPL in Singapore.”

RELEVANT LAW 
10.	I have recently considered the law that is relevant when considering issues of jurisdiction in cases involving persons working abroad on oil rigs.  In particular, I would refer to the discussion in the case of Halliburton Manufacturing &Services Ltd v Ravat UKEATS/0012/08/MT which was in the following terms:

“Section 94(1) of the Employment Rights Act 1996 (‘the 1996 Act’) provides:

“An employee has the right not to be unfairly dismissed by his employer.” 

Nothing further is now said in the statute regarding the extent of the tribunal’s territorial jurisdiction to entertain a claim in respect of unfair dismissal.  Section 196 of the 1996 Act contained express provisions about jurisdiction to the effect that the tribunal’s jurisdiction did not extend to cases where the employee was engaged in work wholly or mainly outside Great Britain if he did not ordinarily work in Great Britain under a contract of employment governed by the law of England and Wales or Scotland.  That was, however, recognised by Parliament to be an unsatisfactory provision and the section was repealed leaving nothing in its place other than that the courts were left to imply any appropriate geographical limitations.  It has been authoritatively stated that it is inconceivable that Parliament intended that there be no geographical limitation on the territorial scope of the provision (Lawson v Serco [2006] ICR 250).

The nature of that limitation was discussed and explained in Lawson, in which Lord Hoffman gave the leading speech.  At paragraph 1 he said:

“It is inconceivable that Parliament was intending to confer rights upon employees working in foreign countries and having no connection with Great Britain.  The argument has been over what those limitations should be.  Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair?  The answer to this question will also determine the question of jurisdiction, since the employment tribunal will have jurisdiction to decide upon the unfairness of the dismissal if (but only if) section 94(1) is the appropriate choice of law.” 

Appropriateness is, accordingly, identified at the outset as the key issue.  That is not surprising.  The concern must, sensibly, be as to when it is and is not appropriate to afford claimants the right that the UK legislation confers to claim unfair dismissal and when it is and is not appropriate to hold an employer to the correlative duty not to unfairly dismiss its employees but to afford them a remedy if they do.  Hence, so it appears, Lord Hoffman’s adoption, at paragraph 6, of  the question posed by Lord Wilberforce in the case of Clark v Oceanic Contractors Inc [1983] 2 AC 130, 152:
“Who, it is to be asked, is within the legislative grasp or intendment, of the statute under consideration?” 

In determining the circumstances in which it will and will not be appropriate to hold that the tribunal has jurisdiction, Lord Hoffman said that the earlier history of the legislation, when s.196 was in force, was relevant.  It showed that Parliament had attached importance to the employee’s place of work when considering jurisdiction questions and place of work thus retained “persuasive force” (paragraph 11).  Further, he clearly stated that the question of whether or not a tribunal had jurisdiction to entertain a s.94(1) claim was a question of law (see paragraphs 24 and 34) and that it is a question that requires to be asked and answered as at the date of dismissal, not as at the date of contracting (paragraph 27). 

In the course of discussing the competing submissions before their Lordships, it is of particular significance for the present case that, at paragraph 19, he dismissed the suggestion that the test could be formulated as whether a British based employer had recruited an employee from the resident British labour pool to work abroad, asking whether the employment relationship was “forged and ultimately rooted” in Great Britain.  He took the view that metaphors were liable to lead to difficulty and added:

“Secondly, it is wide enough to include all cases in which British employees are recruited by a British employer to work abroad, even if the business in which they work is indistinguishable (apart from ownership) from any similar business operating under the employment laws of the foreign country.” 

In the section of his speech headed “Principles not rules”, Lord Hoffman explains that determining whether or not there is jurisdiction depends on the application of principles not rules and I take from that that he has in mind the principle identified by him in paragraph 1 of the appropriateness of recognising jurisdiction in the circumstances of the case.  He then, however, looks at the different categories into which a person’s employment could fall in a case where the jurisdiction question arises.  The ‘standard’ case is where the employee ordinarily works in Great Britain.  It is readily understandable that whatever the base of his employer, such an employee should be afforded the s.94(1) right.  

The second category that Lord Hoffman allows for is where the employee is employed to work peripatically.  In a shift of approach which would, no doubt, have been heartening to the late Lord Denning, Lord Hoffman (at paragraph 29) approved what Lord Denning had said in the case of Todd v British Midland Airways Ltd [1978] ICR 959 at 964 to the effect that what mattered in the case of a peripatetic employee was his ‘base’ and that that was the place where he should be regarded as ordinarily working.  So, in the case of an airline pilot based at Heathrow, he would be regarded as being in the same position as someone whose ordinary working day was spent in Great Britain even although in fact more of his working days were spent outside the country.  That was plainly seen as appropriate because his work base was in Great Britain.  I note, in passing, that at paragraph 34, whilst Lord Hoffman observed that a tribunal’s decision as to whether or not an employee had his base in Great Britain was worthy of ‘considerable respect’ it was actually a decision on a question of law; he was evidently anxious to avoid the exclusion of a right of appeal on the matter. 

The third category considered by Lord Hoffman was that of what he calls “Expatriate employees”.  It is plain from the discussion at paragraphs 35 to 40 that he has in mind all cases in which an employee works abroad for a British employer.  That would, accordingly, appear to cover all cases in which the jurisdiction could arise which do not fall within the first two of his categories.  Lord Hoffman does not restrict this category to those cases where the employee lives in the jurisdiction where he works.  The key factor is that the employee is working abroad for a British employer.  His place of residence is not, on Lord Hoffman’s analysis, of any relevance. That is understandable.  The accrual of s.94(1) rights cannot be dependent on an employee’s place of residence; if that were so then an employee who commutes to London to work for a British based employer from his residence in Paris would not be entitled to the protection it affords yet it would clearly be appropriate that he qualify for it.  The point is not where he is when he is not working; what requires to be examined is where he ordinarily is when he is working and whether, if that is not in Great Britain, it is appropriate nonetheless that he be entitled to assert a claim under s.94(1) and that his employer be fixed with the duty that that right reflects.  

Lord Hoffman explains further that there are restricted circumstances in which jurisdiction arises notwithstanding the fact that the employee is ordinarily working abroad.  At paragraph 37, he makes it plain that working abroad for a British employer is not enough for jurisdiction:

“First I think that it would be very unlikely that someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Great Britain.  But that would not be enough.  Many companies based in Great Britain also carry on business in other countries and employment in those businesses will not attract British law merely on account of British ownership.  The fact that the employee also happens to be British or even that he was recruited in Britain, so that the relationship was “rooted and forged” in this country, should not in itself be sufficient to take the case out of the general rule that the place of employment is decisive.  Something more is necessary.” 

The example which Lord Hoffman gives as one in which jurisdiction will not exist is one where, nevertheless, a substantial connection with Great Britain would be able to be demonstrated.  It is thus clear that he does not approve a test of a “substantial connection”.  On the contrary, he is saying that that is not enough. 

For illustration of the ‘something more’ that would be required, Lord Hoffman refers to the circumstances in the case of The Financial Times v Bishop unrepd EAT/147/03 where a sales executive employed by the newspaper whose responsibility was to sell advertising space was working in San Francisco.  There were not sufficient facts found to identify whether he was doing so as part of the business which the employer conducted in London or whether he was in fact working for a business which the newspaper or an associated company was conducting in the US.  However, what Lord Hoffman focussed on was the need, on remission to the tribunal, to distinguish between the two sets of circumstances because whilst jurisdiction would, by applying his principles, have existed in the former case, it would not have existed in the case of the latter.  As regards the former case, that would have been sufficient, according to Lord Hoffman, because there the employee could properly be regarded as a “representative of a business conducted at home” (para 38) such as:

“...the foreign correspondent on the staff of a British newspaper who is posted to Rome or Peking and may remain for years living in Italy or China but remains nevertheless a permanent employee of the newspaper who could be posted to some other country.  He would in my opinion fall within the scope of section 94(1)”. (para 38) 

When the Financial Times case was before the EAT, Judge Burke stated that the relevant test was one of substantial connection.  There is though no question of Lord Hoffman, by referring to the case in the way and for the purpose that he did, approving or adopting the ‘substantial connection’ test.  It is quite clear from a reading of his speech as a whole that he did not consider that that test could properly identify when it was and was not appropriate for there to be jurisdiction. 

Separately, Lord Hoffman gave the example of an employee working abroad but in circumstances where, for all practical purposes, he is working in an extra territorial British enclave such as where the employee works in a British military base abroad.  He could not think of any other examples:

“40. 	I have given two examples of cases in which section 94(1) may apply to an expatriate employee: the employee posted abroad to work for a business conducted in Britain and the employee working in a political or social British enclave abroad.  I do not say that there may not be others but I have not been able to think of any and they would have to be equally strong connections with Great Britain and British employment law.” 

Thus, it is plain that, on the authority of Lawson v Serco, if an employee does not ordinarily work in Great Britain or cannot be regarded as doing so because he has his base in Great Britain, then it is only in exceptional circumstances that there will be jurisdiction and that the character of those circumstances must be that he is recruited in Britain by an employer who is British for the purposes of furthering, by working abroad, the British business of that employer, not business activities which are carried on by the British business abroad.  Even less can it be the case that jurisdiction will arise where the employee whilst employed by a British employer is not working abroad for that employer but is actually working for the business of another foreign employer.  

It is also clear that the proper law of the relevant contract of employment is irrelevant.  It was not considered to be relevant even under the substantial connection test (see: Financial Times Ltd v Bishop at paragraph 73) and there is no hint in Lawson v Serco of it being considered to be a relevant consideration nor, given the approach in Lawson would it follow that it is.  I would add that jurisdiction cannot, of course, be determined according to whether or not parties have agreed that jurisdiction exists.  Whether it does is a question of law the answer to which is not determined by or dependent on what parties do or do not agree as to its existence.”

11.	My views remain as there expressed.  In particular , I do not consider that Lord Hoffman can be read as having either expressly or implicitly approved a formulation of the test for the existence of jurisdiction as being a matter of asking whether or not the employment had a ‘substantial connection’ with Great Britain.  Such a test would, for instance, be satisfied where an employee lives in Great Britain and is paid in sterling in Great Britain, but works to a pattern that involves regular travel to and from Great Britain, funded by his foreign employer to work for that employer abroad.  But that would not involve the place of work or the base of the employee’s work being Great Britain nor would it involve factors so close to that being the case (such as the particular ‘expatriate employee’ examples provided by Lord Hoffman) that it follows that it is appropriate to find that there is a jurisdiction.  Further, had their Lordships considered that the appropriate test was to ask whether there was a ‘substantial connection’, it would have been easy for them to do so.  Indeed, it would have been easier than setting out the analysis that Lord Hoffman provided.  It is not as if they did not know about it; both Financial Times v Bishop and Jackson v Ghost, in which the substantial connection test had been approved and applied by this Tribunal were cited to and considered by them.  

THE TRIBUNAL’S JUDGMENT 
12.	This is not the only case in which this Employment Judge has considered the issue of jurisdiction in offshore industry cases where claimants have been working outside Great Britain.  I have already referred to the Halliburton case.  There have been others:  Anderson v Stena Drilling PTE Ltd EATS/0080/04, Turner v Specialised Petroleum Services International Ltd S/100252/05, Kennedy v Conoco Phillips S/124316/06, and McLaren v Tidewater Marine North Sea Limited s/116621/06 and S/104413/07. 

13.	It is plain from the judgments in each of these cases that the Employment Judge considers that unless the decision in Lawson v Serco is interpreted in such a way as to be unconcerned about the three categories to which Lord Hoffman refers, in such a way as to disregard his statement that the general rule is that the place of employment is decisive and in such a way as to apply a general test of ‘substantial connection’ with Great Britain, there are, as he puts it,  the right of a British employee to access the protections provided by the legislation of his own country will depend on whether the activity in which he is engaged abroad does or does not constitute conduct of his employer’s business (see: paragraph 115 of the Tribunal’s judgment in this case, paragraph 46 in Halliburton, paragraph 45 in Kennedy, and paragraph 41 in Turner).  The Employment Judge apparently considers that that would be an undesirable outcome.  In these circumstances he has, in each of these cases applied a test of substantial connection.  He has done so in the same way in each case, listing which factors he considers point towards there being a substantial connection with Great Britain and which factors he considers point away from there being a British connection.  In passing, I note that, in the present case, in his list of factors which point away from there being a substantial connection with Great Britain, he overtly downplays the fact that the claimant was on his findings employed by a Singapore company; he refers only to the fact that the claimant’s written contract of employment “showed the employer as a DDPPL, a company in Singapore.”  He could, however, in the light of his own findings, reasonably have been expected to state, simply, that DDPPL, a Singapore company, were the claimant’s employers and it is difficult to resist the impression that, in the wording he uses in his list, he is somehow trying to make it appear that the position regarding the claimant’s employment was less than that.  At the very least it indicates that the Tribunal was not inclined to treat the fact that the claimant was employed by a foreign company as being of particular importance, yet, for the reasons already explained, it should have done.  Further, in each of these cases, there is no indication at all of the Employment Judge recognising and understanding that Lord Hoffman clearly explained in Lawson that the general rule in all such cases is that the place of employment is decisive.

14.	The Employment Judge’s concerns are expressed against a background of knowledge of the circumstances in which operators of offshore installations came to subcontract the function of manning to a separate crewing company, often a subsidiary or associated company created for that purpose, placed in an offshore location so that it can benefit from available relief from liability for employers’ national insurance and possibly also so as to benefit from a more beneficial tax regime (see: paragraphs 11-13).  Those circumstances were not, however, considered by the Tribunal to be such as to affect the genuineness of the claimant’s contract of employment with DDPPL.  By contrast, when it comes to considering the matter of jurisdiction, the Tribunal comments, at paragraph 118 (marked erroneously as paragraph 114):

“….standing back to view the picture from a distance, one observes that those factors which point away from Britain are significant.  The fact is that the claimant was working at all times outside Britain, particularly at the material time of his dismissal; but of course if that were not so this issue would not arise at all.  I appreciate of course that his contractual employment relationship was, at least nominally, with a non – British entity, but that state of affairs was put into place solely in order that DDL, a British company , could derive a particular fiscal benefit from the British government and the entity was created only for that purpose.  Had it not been for that sole reason his employer would have remained British, and in any event that entity was an associate company of DDL and operated closely with it.  I have already commented to the effect that its actual activities functioned simply as DDL’s personnel department, hived off to an office abroad; and indeed it was staffed by personnel from the DDL office in Aberdeen.  At some point we must have regard to the substance of what was going on here.  These factors cause me not to attach any great weight to the point.”  (my emphasis)

an approach which seems to suggest that, whatever its decision on the employer issue, when it came to jurisdiction, the Tribunal came close to saying that in reality things were not as they seemed to be, at all.  The urge to charge the Tribunal with seeking to have its cake and eat it is almost irresistible but it is, perhaps, sufficient to observe that there is a strong impression of inconsistency of approach on its part, flowing from a concern to relieve oil rig employees such as the claimant of the effects, for jurisdiction purposes, of the staffing arrangements that apply to them. 

15.	The essence of the Tribunal’s reasoning is contained in paragraph 96 of the judgment:

“It seems therefore, in very general terms, that an employment tribunal is now to look at any “connection between Great Britain and the employment relationship” and to determine whether any such connection is of sufficient strength or substance to enable it to come within the scope of the Act.  This principle had indeed been foreshadowed in two earlier decisions of the EAT – Jackson v Ghost Ltd 2003 (IRLR 824) and The Financial Times Ltd v Bishop EAT/0147/03).  These indicated that an Employment Tribunal may well have jurisdiction under the ERA if the employment in question has such a connection.” 

and, at paragraph 107, there is reference to the need to look at “the nature of ‘the connection’”, and to it being:

“…perfectly conceivable that an employee may have his place of work in another country abroad, but may carry out the work in a manner or in circumstances where he cannot properly be described as peripatetic or expatriate , and yet be operating in an employment relationship which has tangible connections with the UK.” 

thus introducing another notion, that of having tangible connections with the United Kingdom. 

16.	The ‘substantial connection’ test is applied at paragraphs 118 (to which I have referred above) to 121 and the Tribunal finds jurisdiction to have been established relying particularly on the fact that the claimant’s work was carried out in the furtherance of the British business operations of DDL, a British company, comparing the claimant to the claimant in the Financial Times case selling advertising in San Francisco.  It is not clear whether the Tribunal recalls that not only had it not yet been established whether or not there was jurisdiction in the Financial Times case but, importantly, that the Financial Times, the employer, was a UK company.  

THE APPEAL 
17.	Mr Napier QC submitted, in a clear and well organised submission, that the appeal should be upheld and the application dismissed for lack of jurisdiction.  The Tribunal had erred in applying a substantial connection test.  It had failed to have regard to the fact that, as established by it, the claimant was employed by a foreign company, DDPPL.  This was one of a long line of decisions in which this Employment Judge had been expounding his view of what the law ought to be, waging a one man battle to have Lawson v Serco interpreted so as to support a single test of substantial connection.  Lawson was not authority for that test being the correct one.  If it was then it would bring within the scope of unfair dismissal all those who work abroad on a rotational 2 weeks on, 2 weeks off basis, provided there are facts to show a substantial connection, as there often will be.  The point was a live and important one where there were those working on a rotational basis in areas not covered by the legislation that extends to the UK sector of the continental shelf such as off the coast of Ireland.  It was clear that the Employment Judge would see those workers as having the right to complain of unfair dismissal before as Employment Tribunal in Great Britain.  But whatever the arguments for and against that was not the law as it presently stood.  

18.	Mr Napier submitted that the correct analysis of the present law, according to Lawson v Serco was:
-	if there is a non standard case where the dismissed employee was working outside Great Britain then the general rule was that there would be no jurisdiction , the starting point being that if the employee works abroad and is dismissed then there is no jurisdiction

-	that rule is not an absolute one; it allows for occasional foreign working and an employee being dismissed whilst abroad for, say, a short period 

-	if an employee falls into the category of what Lord Hoffman referred to as expatriate or peripatetic employees (which are exceptions to the general rule), special rules apply.  They are exceptions to the general rule of no jurisdiction 

-	questions of ‘substantial connection’ are relevant only as part of the subset of rules applicable to the situation of the expatriate employee and are not a free standing test 

19.	Mr Napier submitted that it was inconceivable that if ‘substantial connection’ were the universal test their Lordships would not have said so, in Lawson. 

20.	Further, looking at the particular circumstances of this case and under reference to the Halliburton decision, Mr Napier submitted that if, as was determined to be the case there, working abroad for a British employer was not enough (despite a ‘substantial connection’ being established) then the situation in the present case with the claimant working abroad for a foreign employer was, a fortiori, not sufficient for jurisdiction.

21.	For the claimant, Mr O’Carroll sought to defend the Tribunal’s application of a test of ‘substantial connection’.  He said that it was necessary to recognise that without it , it would be very difficult to establish any meaningful starting point at all but it was not entirely clear what he meant by that or how the use of the test as the only test  was consistent with Lawson.  Mr O’Carroll accepted that the Employment Judge had confined his considerations to the application of a test of substantial connection.  His repeated submission was that their Lordships did not disapprove the substantial connection test that had been approved and applied in Jackson.  He seemed to suggest that absent express disapproval of Jackson, their Lordships could be read as approving it but he did not really explain at all how their doing so could have been consistent with Lord Hoffman’s analysis.   

22.	Mr O’Carroll also referred to the well established principle that this Tribunal should be slow to overturn a Tribunal’s findings of fact and that it should give the primary fact finder’s views considerable respect.  He did, however, accept that the appellant was not seeking to have any finding in fact overturned.  The appeal should, he said, be refused.

DISCUSSION AND DECISION 
23.	As I have already indicated, the Tribunal applied a test of substantial connection when considering the question of jurisdiction.  It applied no other test.  It did not start its considerations by recognising that the general rule is that the place of employment is decisive.  It erroneously interpreted Lawson as being authority for there being a single test of ‘substantial connection’ with Great Britain.  It applied it and determined the case in the claimant’s favour in circumstances where it had not even been submitted on behalf of the claimant that jurisdiction would exist if DDPPL was found to have been his employer; Mr O’Carroll’s submissions before the Tribunal had been based on the assumption that the claimant was employed by DDL, the UK company.  It does appear that the Employment Judge has embarked upon and sought to follow through his own agenda here in an effort, notwithstanding a decision of the House of Lords that was binding on him, to apply the law as he believes it ought to be.  He has no doubt done so in good faith but the problem is that he has done it at the expense of doing what he ought to have done namely, to apply the law as it is.  

24.	The claimant in this case worked abroad and was not employed by a British company. His circumstances were, accordingly , not even as ‘British’ as those of  an employee working abroad for a British based company whose employment relationship was ‘rooted and forged’ in Britain which circumstances would not, according to Lord Hoffman, have been sufficient for jurisdiction.  I am readily persuaded by Mr Napier’s submission that the circumstances of this case are plainly not such as to support the conclusion that jurisdiction arises.  

DISPOSAL 
25.	I will, in the circumstances, pronounce an order upholding the appeal and dismissing the claim.