The MoD employed the claimants, two married women, to work in schools which were part of NATO headquarters (HQs). The first claimant worked in Belgium, the second in the Netherlands. Each claimant was the wife of an armed serviceman already employed by the defendant working at NATO HQs. The claimants had not been appointed in England, nor had they been posted abroad after working for the defendant in England. In late 2007, both men left the United Kingdom forces, and worked for NATO as civilians. The defendant dismissed the claimants in September and October 2007, stating that since their spouses no longer were employed by the defendant, the claimants were no longer considered to be dependents of the defendant. The claimants brought proceedings against the defendant for unfair dismissal under the Employment Rights Act 1996. The first claimant also brought proceedings for sex discrimination under the Council Directive (EEC) 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (the Directive). She also sought to bring a claim for sex discrimination under the Sex Discrimination Act 1975 (the 1975 Act). The employment tribunal (the tribunal) found that the 1975 Act would not apply in the instant case, since the first claimant had been working outside UK territory. It further found that, following the dicta of Lord Hoffmann in Lawson v Serco Ltd 1 All ER 823(Serco) the claimants had sufficiently close connections with the UK to have the protection of English unfair dismissal law. The defendant appealed to the Employment Appeal Tribunal (EAT), which dismissed the appeal. The defendant appealed to the Court of Appeal.
Held: Appeal dismissed.
The tribunal had been entitled to conclude that the connection between the UK and the spouses of persons forming part of a British contingent in an international enclave was as strong as that of people employed in British enclaves abroad. It was an infringement of the right to an effective remedy to require a person working abroad in a British enclave to have to bring a claim for sex discrimination under the Directive in the law of the country in which they had been working. It was settled law that statutes had to be construed consistently with EU law or, if that was not possible, by disapplying inconsistent provisions of domestic law. Member states were required to implement the Directive into their domestic law. To conclude that the tribunal had no jurisdiction in the instant matter would oblige the first defendant to bring a claim for sex discrimination in the Belgian court in a case where the Directive had been addressed to all European states, including the UK. The principle of direct effect did not allow a domestic statute to be framed so as to defeat a claim to a directly effective right. Territorial restrictions had to be considered in the same way as other provisions that defeated a claim to a directly effective right. Furthermore, to suggest that the right had to be enforced elsewhere infringed the fundamental principle of EU law that there should be an effective remedy for a breach of any EU right. It was not an effective remedy to require that remedy to be pursued in Belgium.