Lloyd's Maritime and Commercial Law Quarterly
The territorial scope of British employment legislation
Andrew Scott *
I. STATUTORY BACKGROUND
The Employment Rights Act 19961 consolidated a number of enactments relating to individual employment rights, including, for example, in Part X the right not to be unfairly dismissed. With the exception of a small number of its provisions, which are not presently relevant, the 1996 Act extends to England and Wales and Scotland,2 but not to Northern Ireland;3 it is, accordingly, British legislation.4 When originally enacted, s 196(2) of the 1996 Act provided that the majority of its provisions, including those contained in Part X, “do not apply to employment where under the employee’s contract of employment he ordinarily works outside Great Britain”.5 Section 196 continued a tradition, begun in 1971, of Parliament’s specifying expressly, and typically by reference to the concept of “ordinarily working”, the territorial scope of provisions which confer individual employment rights.6 In British equality law, Parliament has, since 1970, used the concept of
* Fellow, All Souls College, Oxford.
1. Hereafter “the 1996 Act”.
2. 1996 Act, s 244(1).
3. For which separate provision was made by the Employment Rights (Northern Ireland) Order (1996/1919).
4. Throughout the present article, the terms Britain and Great Britain are used, interchangeably, in this sense. References to the United Kingdom of Great Britain and Northern Ireland (hereafter “the UK”) are reserved for situations germane to all of its constituent parts.
5. 1996 Act, s 196(3)(f). Identical provision was made, mutatis mutandis, for Northern Ireland under the 1996 Order, (supra n 3), Art 239(2)–(3). Under both enactments, protection from unfair dismissal is, exceptionally, extended to women working outside the relevant territory where the reason for dismissal is related to maternity leave or childbirth: 1996 Act, s 196(4); 1996 Order, Art 239(4).
6. The right not to be unfairly dismissed was first conferred by the Industrial Relations Act 1971, s 27(2) of which excluded an employee who “ordinarily works outside Great Britain”. When the Employment Protection Act 1975 conferred additional rights on employees (eg, to maternity leave, and to time off for performance of trade union and public duties), similar words of territorial limitation were adopted: s 119(5). Different words of limitation were applied in respect of rights to redundancy payments (Redundancy Payments Act 1965, s 17(1) and (2)) and written particulars of the employment agreement (Contracts of Employment Act 1972, s 12(1)). When the legislation conferring these rights was consolidated, first by the Employment Protection (Consolidation) Act 1978 and then by the 1996 Act, their territorial scope was specified expressly, under the 1978 Act, by s 141, and under the 1996 Act, by s 196.
THE TERRITORIAL SCOPE OF BRITISH EMPLOYMENT LEGISLATION
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