Overseas Workers Re-examined: Bryant -v- The Foreign and Commonwealth Office

In the controversial case of Serco Ltd -v- Lawson [reported on the Workplacelaw Network, 28 March 2003, Daniel Barnett], the Employment Appeals Tribunal [EAT] decided that tribunals have jurisdiction to hear unfair dismissal cases if the Respondent is incorporated or carried on business in England or Wales, irrespective of where the employee was based.

Last week, Burton P. reasserted the orthodox position in Bryant -v- The Foreign and Commonwealth Office (FCO) (hearing 10 March 2003, decision sent out on 15 April 2003).

Mrs Bryant worked in Italy for the FCO (which, of course, carries on business in England). She was employed on local terms and conditions, paid in Italy and her contract was subject to Italian law.

She was unrepresented in the EAT, and did not rely on the Serco -v- Lawson case (unsurprisingly, given it came out the week after her hearing). She argued that English nationals employed abroad by the Government who were unable to sue their employer abroad due to diplomatic immunity, should be entitled to bring unfair dismissal claims in England.

Despite the Serco -v- Lawson point not being argued, Burton J. stated that Mrs Bryant was right not to pursue an argument that unfair dismissal rights apply to anybody whose employer carried on business in England or Wales. He upheld the Tribunal's decision that Mrs Bryant could not claim unfair dismissal because she worked overseas, and rejected her argument that diplomatic staff were in a special category.

Comment

There is no reference to the Serco decision in Burton P.'s judgment, thus it is not technically overruled. Tribunals are therefore faced with two conflicting decisions from the EAT. There is little doubt that, unless forced to by authority, tribunals will prefer to adopt the traditional approach. This case means that Serco is no longer binding (because tribunals will have to choose which of the two inconsistent approaches they prefer), and I suspect Serco will now be distinguished into non-existence.
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