Williams v. The University of Nottingham

Factual and Procedural Background

An appeal was brought by the Appellant against a decision of the Employment Tribunal held at Nottingham in December 2006. The Tribunal dismissed the Appellant’s claims of unfair dismissal and disability discrimination as being outside its jurisdiction. A breach of contract claim was also dismissed but is not subject to this appeal.

The Respondent is an English university, a charity established by charter, which set up a joint venture in Malaysia known as University in Malaysia ("UIM"). The joint venture is a Malaysian registered company in which the Respondent holds a minority share, with the remainder held by two Malaysian commercial companies. The Respondent receives a financial return from UIM and provides academic control, including course approval, examinations, and degree awarding. UIM operates day-to-day independently, employing most of its staff and managing its own budget, including staff salaries.

The Appellant was employed by the Respondent as a senior lecturer on a fixed three-year contract starting 1 September 2003, specifically recruited to work at UIM under a secondment agreement for two years beginning 1 October 2003 due to work permit issues. The Appellant worked exclusively in Malaysia throughout his employment, including the initial and final periods, and did not perform work in the UK.

The Appellant held the position of Director of Research at UIM and conducted significant research, some in collaboration with colleagues in the UK. The Respondent benefited from this research, which enhanced its overall profile and reputation. PhD students were initially registered with the Respondent in the UK before Malaysian approval was granted, after which registration shifted to Malaysia.

The Respondent ensured quality standards at UIM matched those in the UK, prepared course materials, provided examinations, and awarded degrees. The Appellant was informed that a key duty was to maintain the Respondent’s standards at UIM. UIM had its own board with minority representation from the Respondent, and the Vice-Chancellor of the Respondent also served as Vice-Chancellor of UIM. The Appellant’s salary was paid by the Respondent but reimbursed by UIM, and his contract contained disciplinary and grievance procedures with the Respondent.

By September 2005, employment difficulties arose between the Appellant and colleagues in Malaysia. Attempts to resolve these failed, and the Respondent terminated the Appellant’s secondment to UIM in October 2005, instructing him to return to the UK. The Appellant did not return, raised grievances which were considered by the Respondent’s Vice-Chancellor, and resigned in December 2005 while remaining in Malaysia.

The Respondent’s aim in establishing UIM was to enhance its global profile. Publicity described UIM as integral to the Respondent, but the Tribunal found that UIM was effectively a franchise operation, a separate entity with close connections to the Respondent, providing services and maintaining standards consistent with the Respondent’s UK standards.

Legal Issues Presented

1. Whether the Employment Tribunal had jurisdiction to entertain the claim of unfair dismissal under section 94 of the Employment Rights Act 1996, given the territorial scope of the employment relationship.
2. Whether the Employment Tribunal had jurisdiction to entertain the claim of disability discrimination under the Disability Discrimination Act 1995, specifically under sections 4(6) and 68 regarding employment at an establishment in Great Britain.
3. The proper interpretation of the phrase "for the purposes of the business carried on at an establishment in Great Britain" under section 68(2A)(b) of the Disability Discrimination Act 1995, and whether it differs from the interpretation applied in the context of unfair dismissal jurisdiction.
4. Whether the Appellant’s employment situation after termination of secondment required treating him as working in the UK for jurisdictional purposes.
5. Whether the Tribunal erred in concluding that the Appellant was not working for the purposes of a business carried on in Great Britain.

Arguments of the Parties

Appellant's Arguments

• The Employment Tribunal erred in law by applying the same test for jurisdiction under the Disability Discrimination Act as that applied for unfair dismissal, relying on a restrictive interpretation from Lawson v Serco.
• The statutory test under the Disability Discrimination Act should be more expansive, allowing jurisdiction if there is any significant benefit to the Respondent in the UK from the Appellant’s work abroad.
• The legislative history shows a progressive enlargement of Tribunal jurisdiction in discrimination cases, supporting a purposive construction favoring broader jurisdiction.
• The Tribunal failed to consider that after termination of secondment, the Appellant was contractually required to work in the UK, which should confer jurisdiction.
• The Tribunal wrongly concluded that the Appellant’s work was not for the purposes of a business carried on in Great Britain.

Respondent's Arguments

• The language used by Lord Hoffman in Lawson v Serco closely parallels the statutory language in the Disability Discrimination Act, indicating a consistent jurisdictional test should apply.
• It would be inconsistent and inappropriate to interpret the same or similar jurisdictional language differently in unfair dismissal and discrimination contexts, especially where claims are often pursued concurrently.
• The Appellant never worked in the UK during the relevant period, and the Respondent accepted his continued presence in Malaysia.
• The Tribunal correctly found that the Appellant’s work was for the separate and distinct business of UIM in Malaysia, not for the Respondent’s business in the UK.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered the territorial jurisdiction for unfair dismissal under section 94 of the Employment Rights Act 1996 and the jurisdiction for disability discrimination under the Disability Discrimination Act 1995. It relied heavily on the House of Lords decision in Lawson v Serco, where Lord Hoffman emphasized that the relevant test is where the employee was working at the time of dismissal and whether the work was for a business carried on in Great Britain.

The court acknowledged that the statutory language in the Disability Discrimination Act closely mirrors the common law language considered in Lawson v Serco, supporting a consistent interpretation. It rejected the Appellant’s argument that the jurisdiction under the Disability Discrimination Act should be broader, holding that the Tribunal did not err in applying the Lawson test.

Factually, the Tribunal found that the Appellant worked exclusively in Malaysia for UIM, a separate and distinct legal entity from the Respondent, despite the close connections and benefits to the Respondent. The Tribunal’s conclusion that the Appellant’s employment was for the purposes of the Malaysian business rather than the Respondent’s UK business was a question of law informed by factual evaluation, and the court gave considerable respect to the Tribunal’s findings.

The court also dismissed the argument that the Appellant’s contractual obligation to work in the UK after termination of secondment conferred jurisdiction, emphasizing that jurisdiction depends on where the work was actually performed rather than contractual entitlement.

Ultimately, the court agreed with the Tribunal that it lacked jurisdiction over both the unfair dismissal and disability discrimination claims.

Holding and Implications

The appeal is DISMISSED.

The Employment Tribunal's decision that it lacked jurisdiction to hear the Appellant’s claims of unfair dismissal and disability discrimination was upheld. The direct effect is that the Appellant’s claims remain outside the Tribunal’s jurisdiction due to the territorial nature of his employment. No new precedent was established beyond affirming the consistent application of Lawson v Serco’s principles to both unfair dismissal and disability discrimination jurisdictional questions.