Home > Cases > Ministry of Defence v Wallis & Anor [2010] UKEAT 0546_08_3007

The Ministry of Defence appealed against an employment tribunal’s decision that it had jurisdiction to hear unfair dismissal and sex discrimination claims brought by the respondent former employees, W. W’s husband was a member of the British armed forces who had been posted to a NATO headquarters in Belgium. W accordingly became eligible for employment in a school attached to the headquarters. Unlike other locally-recruited staff, W, as a dependent of a member of the British contingent, was employed under a contract governed by English law and on terms giving her rights equal to those she would have had under English employment law in relation to matters such as her notice period, health and safety, statutory sick pay and maternity leave. Her employment was terminated when her husband’s service came to an end.

The MoD contended that (1) in relation to the unfair dismissal claim, the judge had been wrong to find that there was a sufficiently special connection between the employment relationship and Great Britain such that British employment law should apply to it; such a special connection could not be based on a personal feature, namely that W qualified for employment only because her husband had been posted to the base as part of the British military contingent, rather than some characteristic of W’s work; (2) in relation to the sex discrimination claim, it was inappropriate to apply the principle established in Bleuse v MBT Transport Ltd [2008] I.C.R. 488, [2008] C.L.Y. 1171, which required territorial limitations on the scope of domestic legislation to be modified in order to give effect to directly effective rights under a Directive, to the enforcement of rights derived from Directive 76/207. The Directive did not confer directly effective rights on employees outside the Member State in which they were sought to be invoked and there was accordingly no mismatch between the territorial grasp of the Directive and the implementing legislation, namely the Sex Discrimination Act 1975.

The MoD’s appeal was dismissed.

(1) There was no reason in principle why the special connection with Great Britain necessary to bring overseas employees within the scope of British unfair dismissal legislation should take the form of an inherent feature of the work. Parliament must be taken to have intended employment relationships such as W’s, which were parasitic on the employee’s status as the spouse of a member of the armed services posted abroad, to fall within the scope of British employment law, Lawson v Serco Ltd [2006] UKHL 3, [2006] 1 All E.R. 823, [2006] C.L.Y. 1390 applied and Bryant v Foreign and Commonwealth Office considered.

(2) None of the Directives to which the Bleuse principle had been applied contained any express provision about their territorial grasp. Rather, the premise of the reasoning underlying the principle was that Directive 2003/88 necessarily required a Member State to accord the rights conferred by the Directive to all employees working within the EU under contracts of which the Member State’s law was the proper law or the applicable law under the Rome Convention art.6(2). There was no basis for applying different reasoning to Directive 76/207.

(3) Although a potential distinction between the cases in which the Bleuse principle had been applied and the instant case was that the territorial limitations in the Sex Discrimination Act 1975 were express, it was understandable that M had not relied on that distinction. No weight had been placed on that distinction by the authorities, and the interpretive obligation on the courts in giving effect to directly effective EU law was increasingly being recognised as very strong, Bleuse and Duncombe v Department for Education and Skills [2009] EWCA Civ 1355, [2010] 4 All E.R. 335 applied and Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 A.C. 557, [2004] C.L.Y. 2538 considered.

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