Jeffery v The British Council (Jurisdictional Points : Working outside the jurisdiction), Court of Appeal - United Kingdom Employment Appeal Tribunal, August 25, 2016, [2016] UKEAT 0036_16_2508

Resolution Date:August 25, 2016
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Jeffery v The British Council (Jurisdictional Points : Working outside the jurisdiction)
 
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Copyright 2016

Appeal No. UKEAT/0036/16/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 6 May 2016

Judgment handed down on 25 August 2016

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

MR D JEFFERY APPELLANT

THE BRITISH COUNCIL RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0036/16/JOJ

APPEARANCES

UKEAT/0036/16/JOJ

SUMMARY

JURISDICTIONAL POINTS - Working outside the jurisdiction

The Claimant was a UK appointed employee of the British Council, the Respondent, working abroad; he was ``truly expatriate'' and he was not a civil servant. He was, however, employed under a contract of employment which expressly incorporated English law, entitled him to a Civil Service Pension (by virtue of specific statutory provision) and made a notional deduction for UK tax; and the Respondent for whom he worked was a non departmental public body having an important place in British public life. The Claimant established an overwhelmingly stronger connection with Great Britain and with British employment law than any other system; so he was entitled to bring claims under the Employment Rights Act 1996 and the Equality Act 2010.

Lawson v Serco Ltd [2006] ICR 250 (House of Lords), Duncombe v Secretary of State for Children Schools and Families (No 2) [2011] ICR 1312 (Supreme Court), Ravat v Halliburton Manufacturing and Services Ltd [2012] ICR 389 (Supreme Court), Bates van Winkelhof v Clyde & Co LLP [2013] ICR 883 (Court of Appeal) and Dhunna v CreditSights Ltd [2015] ICR 105 (Court of Appeal) summarised and applied.

UKEAT/0036/16/JOJ

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HIS HONOUR JUDGE DAVID RICHARDSON

  1. This is an appeal by Mr David Jeffery (``the Claimant'') against a Judgment of Employment Judge Pearl sitting alone in the London (Central) Employment Tribunal. The Claimant brought claims against the British Council (``the Respondent'') under the Employment Rights Act 1996 and the Equality Act 2010. At all material times he worked outside the UK. The Employment Judge upheld the Respondent's argument that the Employment Tribunal did not have jurisdiction to entertain the claims.

  2. The appeal was heard before me on 6 May 2016. Both sides were represented by the same counsel as below: Mr James Stuart for the Claimant, Mr James Laddie QC for the Respondent. It was agreed that counsel would consider further and make written submissions on one aspect of the case - the relevance of the Official Secrets Act 1989, to which reference was made in the Claimant's contract of employment. I have received and considered further submissions on both sides concerning this question.

  3. In this Judgment I will first set out the principles of law which must be applied concerning territorial jurisdiction; then summarise the background facts and the Reasons of the Employment Judge; then address three particular areas which seem to me to call for further exposition; then turn to the submissions of counsel and my conclusions.

    Territorial Jurisdiction

  4. The Employment Rights Act 1996 contains no specific provision dealing with the extent to which its provisions apply to employment outside Great Britain. A series of cases, well known to employment lawyers, have addressed this issue. The leading cases are Lawson v Serco Ltd [2006] ICR 250 (House of Lords), Duncombe v Secretary of State for Children Schools and Families (No 2) [2011] ICR 1312 (Supreme Court), Ravat v Halliburton Manufacturing and Services Ltd [2012] ICR 389 (Supreme Court), Bates van Winkelhof v Clyde & Co LLP [2013] ICR 883 (Court of Appeal) and Dhunna v CreditSights Ltd [2015] ICR 105 (Court of Appeal).

  5. It is not necessary, for the purpose of this appeal, to engage in an extensive review of these authorities. The essential principles are not in doubt. It is common ground that the principles apply to the specific claims which the Claimant has brought - constructive unfair dismissal, and automatic unfair dismissal and detriment by reason of public interest disclosure (as to the latter, see Smania v Standard Chartered Bank [2015] ICR 436 (EAT)). It is also common ground that similar principles apply to the Claimant's claims under the Equality Act 2010 (as in, for example, Bates van Winkelhof).

  6. The fundamental principle is that an employee who is working or based abroad at the time of his dismissal is excluded from the protection. The general rule is that the place of employment is decisive. There are, however, exceptions. The position was summarised as follows by Lord Hope in Ravat:

    ``28. The reason why an exception can be made in those cases is that the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them. The expatriate cases that Lord Hoffmann identified as falling within its scope were referred to by him as exceptional cases: para 36. This was because, as he said in para 36, the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation. It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them.''

  7. The Claimant was at the time of his resignation from the Respondent's employment truly expatriate. It was therefore necessary for him to show an especially strong connection with Great Britain and British employment law in order to establish that the Employment Tribunal had jurisdiction to entertain his claims - described also in Duncombe as ``an overwhelmingly closer connection with Britain and with British employment law than with any other system'' (paragraph 16). It was, however, not necessary for him to bring himself within the confines of an existing established category of expatriate employee (such as the expatriate employee in a foreign enclave, successful in Serco, or the UK government employee working in an international enclave, successful in Duncombe): see Ravat at paragraphs 18, 26. Equally, however, it is plain that the ``especially strong connection'' is not established merely by showing that the expatriate employee is a UK citizen and recruited in the UK by a British company though these factors will ``never be unimportant'' (see Ravat at paragraph 27, Lord Hope).

  8. The nature of the Employment Tribunal's task was summarised by Elias LJ in Bates van Winkelhof at paragraph 98:

    ``98. ... The comparative exercise will be appropriate where the applicant is employed wholly abroad. There is then a strong connection with that other jurisdiction and Parliament can be assumed to have intended that in the usual case that jurisdiction, rather than Great Britain, should provide the appropriate system of law. In those circumstances it is necessary to identify factors which are sufficiently powerful to displace the territorial pull of the place of work, and some comparison and evaluation of the connections between the two systems will typically be required to demonstrate why the displacing factors set up a sufficiently strong counter-force. ...''

  9. It is important to keep in mind that, while the ET's task will typically involve comparing the Claimant's connections with the locations and systems of law which are in play, it is no part of the ET's task to compare the merits of the legal systems themselves: see Dhunna at paragraphs 40-41.

  10. These principles are now well established; and I will comment only on two features which were addressed in submissions before me.

  11. The first relates to the significance of the fact that the expatriate...

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