Ministry of Defence v Wallis [2011] EWCA Civ 231

This is the appeal in the case of the wives of service personnel posted to NATO establishments in Belgium and Holland, who had worked in MOD international schools there and who wished to claim unfair dismissal and sex discrimination in a GB tribunal. The EAT upheld the decision of the tribunal that (a) in relation to unfair dismissal, although they did not come within any of the three categories of overseas claims set out in Lawson v Serco [2006] IRLR 289, HL, they could come within Lord Hoffmann’s residual category of some other close connection with GB; and (b) in relation to discrimination, although they did not come within the statutory territorial jurisdiction provisions of the SDA 1975 ss 6 and 10, they could rely on the rights under the backing directive instead. That judgment has now been upheld by the Court of Appeal in two relatively short judgments by Mummery and Elias LJJ, both former EAT Presidents. They accepted that the tribunal had applied the correct law and that, on the facts, had been entitled to come to their decision, especially on the ‘close connection’ test in Lawson. One irony is that, although much of the discussion concerns the basis for the application of the EU law rights in relation to the discrimination claim, it is now the interpretation of Lawson that is of more future significance because of the decision when enacting the consolidation in the Equality Act 2010 not to include the territorial jurisdiction provisions of the previous legislation. Thus, in future, both types of claim are to be covered by the principles in Lawson (though note the point made at L [533.02] that it may still be required to interpret Lawson even more widely if necessary to do so in order to give full effect to an EU right).

Harvey on Industrial Relations and Employment Law Update: Bulletin April 2011