Unanimous Decision Wins Landmark Case Written by Jonathan Brain

Mills Kemp & Brown are delighted to have won a landmark case which has far reaching implications for overseas workers. Partner Jonathan Brain took the case of Stephen Lawson to the House of Lords on a pro bono (unpaid) basis because he believed in its importance. Stephen Lawson, 53,of Ward Green, Barnsley, a security officer formerly employed on Ascension Island by Serco Ltd, a UK registered company with a Middlesex head office, claimed unfair dismissal on the basis that his health and safety were put in peril by being asked to work excessively long hours.

In a judgement handed down from the House of Lords this month, a unanimous decision was made in Mr Lawson's favour. Jonathan Brain commented; "We are delighted with this result. Following the outcome of Mr Lawson's appeal, practitioners and the judiciary now have a definitive answer. People with strong British connections ordinarily working outside Great Britain for employers based in Great Britain are entitled to have unfair dismissal claims heard in the Employment Tribunal under English Law. This was previously an uncertain and potentially unfair area."

Counsel for Lawson instructed in the case, Jacques Algazy and Paul Spencer of Cloisters Chambers, London, were also acting on a pro bono basis. Lord Hoffman chaired the appeal which was also heard by Lord Woolf, Lord Rodger, Lord Walker and Baroness Hale. Watford Employment Tribunal had previously ruled that it had no jurisdiction to hear the claim as he was employed to work outside of England and Wales even though he was working for a British based employer.

Ascension Island is in the south Atlantic and is governed not by English law but by the law of St Helena. The importance of the case, which was heard in the House of Lords in November last year, is underlined by the fact that lawyers for the Foreign and Commonwealth office were given permission to take part in the appeal due to concerns on the part of the government of the possible implications of the House of Lords conferring unfair dismissal rights upon those employed overseas.

Stephen Lawson was first interviewed in the UK for the post of security officer and worked for Serco on Ascension Island from September 22, 2000 until he resigned from his post on April 6, 2001. He brought a claim for unfair constructive dismissal in the Employment Tribunal. Having less than 12 months service, Mr Lawson would not normally have been able to bring such a claim, however, health and safety claims and claims involving a breach of the Working Time Regulations 1998 are amongst the exceptions to this rule.

The Working Time Regulations 1998 provide that a worker can not be made to work more than 48 hours a week unless the worker agrees in writing. Mr Lawson represented himself at the Watford Employment Tribunal. After this he received advice from us and an appeal was brought in the Employment Appeal Tribunal (EAT). The Employment Tribunal's decision was overruled on 11 March 2003. This was not the end of the story however as Serco Ltd appealed to the Court of Appeal which overruled the decision of EAT on the basis unfair dismissal can only be claimed in an Employment Tribunal in relation to employment in Great Britain. Following this decision, Mr Lawson's appeal was brought before the House of Lords.