Jeffery v The British Council UKEAT/0036/16/JOJ
Appeal against the dismissal of the Claimant's claims of constructive unfair dismissal, automatic unfair dismissal and detriment by reason of public interest disclosure on the basis that the Employment Tribunal did not have jurisdiction to entertain the claims. Appeal allowed.
The Claimant was a UK appointed employee of the British Council, the Respondent, working abroad. His employment contract expressly provided that his contract was governed by the laws of England and Wales, his salary was payable in sterling, he was entitled to membership of the Civil Service Pension Scheme and his employment was pensionable. He was also subject to the Official Secrets Act. He was at the time of his resignation from the Respondent's employment truly expatriate. The general rule is that Parliament is assumed to have intended that the foreign jurisdiction should provide the appropriate legal system to which any claim for redress is addressed. It was therefore necessary for the Claimant 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. The ET ruled against him, saying that the Claimant was in many respects a classic expatriate employee working to manage a business based abroad and carried on abroad. The links with London and Great Britain did not displace the general rule and therefore there was no jurisdiction to entertain the claims. The Claimant appealed.
The EAT allowed the appeal. The Claimant had 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. The reference in the contract to the Official Secrets Act 1989 was yet another factor which was indicative of the connection with Great Britain.
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
HIS HONOUR JUDGE DAVID RICHARDSON
THE BRITISH COUNCIL (RESPONDENT)
Transcript of Proceedings
For the Appellant
MR JAMES STUART (of Counsel)
Messrs Pitmans Solicitors
34 Bridge Street
For the Respondent
MR JAMES LADDIE (One of Her Majesty's Counsel)
Mills & Reeve LLP Solicitors
100 Hills Road
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** ](http://www.bailii.org/uk/cases/UKHL/2006/3.html)** ICR 250 (House of Lords), **[**Duncombe v Secretary of State for Children Schools and Families (No 2)**]()**  ICR 1312 (Supreme Court), **[**Ravat v Halliburton Manufacturing and Services Ltd** ]()** ICR 389 (Supreme Court), [**Bates van Winkelhof v Clyde & Co LLP** ]() ICR 883 (Court of Appeal) and **[**Dhunna v CreditSights Ltd**]()**  ICR 105 (Court of Appeal) summarised and applied.**HIS HONOUR JUDGE DAVID RICHARDSON**
- 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.
- 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.
- 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.
- 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  ICR 250 (House of Lords), Duncombe v Secretary of State for Children Schools and Families (No 2)  ICR 1312 (Supreme Court), Ravat v Halliburton Manufacturing and Services Ltd  ICR 389 (Supreme Court), Bates van Winkelhof v Clyde & Co LLP  ICR 883 (Court of Appeal) and Dhunna v CreditSights Ltd  ICR 105 (Court of Appeal).
- 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 ]() 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).
- 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."
- 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).
- 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. …"
- 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.
- These principles are now well established; and I will comment only on two features which were addressed in submissions before me.
- The first relates to the significance of the fact that the expatriate employee is employed under a contract which expressly incorporates English law.
- In Dhunna (paragraph 43) Rimer LJ described this factor as "not compelling" - a dictum quoted by the Employment Judge in this case. He meant, in my opinion, that this factor on its own cannot compel the conclusion that territorial jurisdiction is established. But it will always be significant if a contract is governed by English law: it bears on the degree of connection with British employment law and it is "relevant to the expectation of each party as to the protection which the parties would enjoy" (Duncombe, Lady Hale, paragraph 16). So it may find an important place in a list of factors establishing an especially strong connection: indeed in Duncombe it was one of the two principal factors which led to the conclusion that territorial jurisdiction was established (see paragraphs 16-17).
- The second relates to the test which the Employment Appeal Tribunal, as an appellate court, must apply when reviewing the Judgment of an Employment Tribunal on this question.
- The Employment Appeal Tribunal is vested with power only to deal with questions of law. In Serco the question of territorial jurisdiction was characterised by Lord Hoffman as follows:
"34. … In my opinion, therefore, the question of whether, on given facts, a case falls within the territorial scope of section 94(1) should be treated as a question of law. On the other hand, it is a question of degree on which the decision of the primary fact-finder is entitled to considerable respect. …"
- This is the approach I will take. The primary fact finder's decision in a case of this kind is entitled to particular respect not least because (1) it is the decision of a specialist Judge; (2) the Judge heard all the evidence, and it is not always easy to capture in a set of reasons the overall impression given by the evidence; and (3) although "on given facts … the scope of section 94(1) is a question of law, … it is also a question of degree" (Lord Hope in Ravat at paragraph 29).
- I note that in Ravat Lord Hope also said in paragraph 29:
"29. … The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain."
- On one reading, this might mean that the assessment is one entirely of fact, so long as the correct legal test is applied. But I do not understand Lord Hope to have been laying down a different test to that which Lord Hoffman stated; nothing else in his opinion suggests that he intended to do so, and the earlier passage in the same paragraph is entirely consistent with Lord Hoffman's approach.
- The Employment Judge made careful and thorough findings of fact within paragraphs 4 to 24 of his Reasons. I will summarise the essential points.
- The Respondent is a public corporation established by Royal Charter. It is governed by a Board of Trustees. It is a registered charity. It describes itself as "the United Kingdom's international organisation for cultural relations and educational opportunities". It emphasises that its staff are "public servants and are not government employees or part of the UK civil service".
- The Royal Charter determines the scope of its work as follows:
a. promote cultural relationships and the understanding of different cultures between peoples of the UK and other countries;
b. promote a wider knowledge of the UK;
c. develop a wider knowledge of the English language;
d. encourage cultural, scientific, technological and other educational co-operation between the UK and other countries.
- As part of its work the Respondent runs teaching centres ("TCs") in many parts of the world. They operate in a similar way to private language schools, offering English courses to students of all ages. There were three such centres in Dhaka in Bangladesh. Their purpose was to help local people, not the expatriate community, and they were integrated into the local community.
- Although there is a teaching centre department based in London the great majority of operational decisions were taken at a regional, country or local level. Subject of course to the governance of the Board of Trustees, the TCs have a high degree of financial and commercial autonomy. Thus in Bangladesh the TCs are funded entirely from fees raised in Bangladesh from either the many thousands of students attending the centres or from corporate clients. Salaries and expenses are generally met by TCs locally. The money of UK taxpayers is not used to support them. The Employment Judge said that the business was carried out locally, managed locally and relied on its own fee income.
- The Claimant was first employed by the Respondent in 1994. He is a UK citizen, recruited in the UK, but he has almost always worked abroad within TCs - as a teacher, a senior teacher, a Director of Studies and latterly as a Centre Manager in locations as diverse as Lisbon, Seoul, Saudi Arabia, Porto, Athens, Japan, the Middle East, Brazil and Bangladesh. He had a career break for one year in 2010 and two short assignments in the UK from September 2011 to February 2012 and from May 2012 to 7 August 2012. The Employment Judge described him as an enthusiastic expatriate, enjoying the fact that he was based abroad. He did not ordinarily live in the UK or even have a home in the UK, although he owned properties which he let, visited his parents in the UK and hoped to retire to the UK.
- The Claimant's employment was governed by an offer letter dated 6 September 2005 given to him when he was offered further employment "on an indefinite contract basis". It expressly provided that his contract was governed by the laws of England and Wales (paragraph 22). His salary was payable in sterling. He was entitled to membership of the Civil Service Pension Scheme and his employment was pensionable (paragraphs 14, 15). It was said that "all officers are subject to the Official Secrets Act" (paragraph 13).
- With effect from 8 August 2012 the Claimant became a teaching centre manager ("TCM") in Bangladesh. His appointment was confirmed by a letter dated 19 June 2012. It was initially for a period of 3 years with the possibility of remaining for a further year. A letter dated 27 June 2012 set out further provisions. His salary was £33,455, and there were in addition substantial mobility and location allowances of £11,000 and £12,400. But there was also a "notional deduction for UK tax" - a feature to which I will return later in this Judgment. He was entitled to free accommodation and other benefits. The Claimant acknowledged in his evidence the benefits of being employed abroad.
- The Respondent has an equality policy expressly said to be "aligned to the Equality Act 2010 … and relevant legislation aligned to the geographical regions in which we operate". The policy does not, however, purport to directly apply any single piece of legislation.
- The Claimant was a successful and highly regarded TCM. About 30-40 people reported to him. He was responsible for "growing the business", as the Employment Judge put it. He turned round the TC for which he was responsible so that it made a profit. It is not necessary to set out in any detail the circumstances of his resignation; it is sufficient to say that they concern a decision to close his TC; he and others strongly protested against that decision over some months; it was reversed, but he resigned shortly afterwards.
- The Employment Judge, having made detailed findings of fact, summarised the law in a manner which is impeccable.
- He turned to his conclusions in paragraphs 37 to 44 of his Reasons. He set out the basic position in paragraph 37:
"37. The starting point is that the Claimant was based wholly abroad. He had been for about 18 years. He enjoyed being based abroad, had made his home in various countries, where he had been posted, and he had no home in the UK. He was an enthusiastic expatriate employee and his preference in that regard should be fully respected. He is, therefore, subject to the "general rule", unless the rule can be displaced. The rule is that Parliament is assumed to have intended that the foreign jurisdiction should provide the appropriate legal system to which any claim for redress is addressed. The issue I must determine is whether there are factors here that displace this "territorial pull". This will be the result if sufficiently strong connections with Great Britain and British employment law are established."
- The Employment Judge then dealt with individual factors on which counsel for the parties had relied. He said that the fact that employment was under an English contract for an English concern is "not a compelling factor", relying on the dictum of Rimer LJ (paragraph 39). He noted that the TCs could be likened to private language schools and that they were integrated into the community. He said that "the business was carried on locally, was managed locally and substantially relied on its own fee income, wholly so, when it was self sufficient".
- He said, in response to a submission that the business was run for the greater benefit of Britain and a public body, and accepting a submission by Mr Laddie:
"42. … the Respondent is a charity established by Royal Charter. It is not a governmental organisation. Any links with the UK government are not unusual. It matters little that it promotes the interests of the UK. The Claimant is not a civil servant or a Crown employee."
- He concluded by saying:
"44. … Such connections as there are to the UK do not amount to connections of sufficient strength to displace the general rule. On the contrary, his circumstances appear to me to fall within that rule. One factor only gives me some pause for thought and that is that the Claimant was subject to the Official Secrets Act. This is a feature of the case that has not received a great deal of attention. My conclusion is that it does not mean there was a connection with British employment law, but being subject to the Act does impose on employees such as [the Claimant] obligations in respect of information that might come into their possession when working abroad. There is no reason why the obligation cannot be imposed on an employee who is in all other respects an expatriate employee. He has accepted that state of affairs, in the same way as he has accepted the law of the contract. Therefore, when placed against the other factors I am not persuaded that it has decisive weight. Those other factors point quite strongly, in my judgment, against the Claimant's arguments. He was in many respects a classic expatriate employee working to manage a business based abroad and carried on abroad. The links with London and Great Britain do not displace the general rule and I would hold that there is no jurisdiction to entertain the claims."**The Civil Service Pension**
- As I have explained, the Claimant was entitled to a pension under the Civil Service Pension Scheme. This is an exceptional feature to find in the case of an employee who is wholly expatriate. The Employment Judge mentioned it in his findings of fact but did not return to it in his conclusions. I asked counsel to research and explain to me how the Claimant could be entitled to enrol in the Civil Service Pension Scheme.
- As a general rule the Civil Service Pension Scheme is available only to persons in employment in the Civil Service of the State: see section 1(4)(a) of the Superannuation Act 1992. But the Scheme can also be made available to persons who are in employment or offices of a kind listed in Schedule 1 to the Act: see section 1(4)(b). The British Council was added to Schedule 1 by section 1 of the British Council and Commonwealth Institute Superannuation Act 1986. Schedule 1 lists major national museums and galleries followed by a large number of institutions which are in a broad sense public or governmental or both.
- A document produced by the Respondent and provided to me by counsel dated 2009 indicates that "most British Council UK-appointed staff" are members of the Civil Service Pension Scheme. The Employment Judge was provided, for comparison with the Claimant's conditions, with the contract of a locally employed member of staff. As one would expect it makes no similar provision.
- The Employment Judge noted in his findings of fact that a notional deduction for income tax was made "in order to maintain comparability with those at the same level as the Claimant who were working in the UK". He said that this was a policy applied across the board by the Respondent.
- The provision in question is found in the Guide to Benefits which was attached to the letter dated 27 June 2012. It notes that as a "British Council member of staff working overseas", it was unlikely that the Claimant would pay income tax. It said that:
"Notional tax is deducted from your gross salary (excluding Mobility, Location and Cost of Living Allowances) to maintain comparability with the position were you to be working for the British Council in the UK. You should note carefully that notional tax deductions are not intended to replicate the actual tax payable if you were working in the UK."
- The amount deducted appears, in broad terms, to be the amount which would be paid in basic rate tax after a personal allowance.
- The Employment Judge said that he found this to be a policy applied "across the board" by the Respondent. I assume by this he meant across the board to UK appointed staff working overseas. The contract for locally employed teachers which I have in my papers for comparison indicates that income tax will be deducted at source in accordance with the tax regulations of the Government of Bangladesh (clause 10).
- The Employment Judge was in my opinion right to give careful thought to the reference in the Claimant's contract of employment to "all officers being subject to the Official Secrets Act 1989". It is not a provision one would expect to find in the contract of a language school teacher or centre manager outside the UK absent some unusual connection between the employment and the UK. The Employment Judge will also have known that the Respondent has pleaded the national security defence in section 192 of the Equality Act 2010; and it has suggested that the Claimant "may be in breach of the Official Secrets Act 1989" by disclosing some of the material in his ET1 particulars. So, at least by the time he was a centre manager in the latter period of his employment, the provision may have been of practical significance.
- A survey of the Official Secrets Act 1989 demonstrates that it may impact on an officer of the Respondent only in limited ways. Its provisions apply specifically to those who are or have been members of the security and intelligence services, Crown servants and certain specific government contractors. Some provisions apply to a person who is notified that he is subject to the provisions of section 1(1) of the 1989 Act; but it is common ground that the reference in the Claimant's contract of employment was not such a notification, and that he has received no such notification: see section 1(3).
- The Claimant falls within none of these categories. Mr Stuart submitted that the Claimant might be a Crown servant, on the basis that he was "employed in the civil service of the Crown" (see section 12(1) of the 1989 Act). I am satisfied that he is not. The Act contains no definition of the Civil Service, but it is a criminal statute which cannot be given an expansive construction. I do not think it applies to officers of the Respondent.
- Mr Stuart also submitted that there might be a contractual obligation to comply with the 1989 Act; I am satisfied that the contract cannot be read this way; it sets out a warning and does not in any way purport to import the obligations of the 1989 Act, which is in any event a criminal statute.
- There is, however, an important provision which would potentially apply to the Claimant: this is section 5 of the Act. It applies to a British citizen anywhere in the world (see section 15(1)). It is not necessary to set out the full terms of this section; but in broad terms if such a person receives protected information in confidence directly or indirectly from a Crown servant or government contractor he will be guilty of a criminal offence if he makes a damaging disclosure of it (section 5(2) and (3)).
- In summary, therefore, the provisions of the Official Secrets Act 1989 have only limited application to the Claimant; but the fact that his contract tells the Claimant that the 1989 Act applies to him at all is not without significance. It draws his attention to the fact that even when serving abroad, as a British citizen working for a body of a public nature (the Respondent describes itself as a "non departmental public body"), he may come within its purview. It is difficult to envisage such a provision in the contract of an expatriate unless his employment had an exceptional connection with the UK. It is also difficult to envisage the inclusion of such a provision in the contract of a locally employed teacher - indeed it is not to be found in the sample which the Respondent provided.
- On behalf of the Claimant Mr James Stuart put forward three grounds of appeal.
- Firstly, he submitted that the Employment Judge limited his analysis to whether the Claimant fell within one of the two identified categories of employee mentioned by Lord Hoffman in Serco; he argues that the Employment Judge did not have sufficient regard to the underlying principle identified in Ravat. The Employment Judge, while making findings of fact on many of the factors, did not then carry out the required comparative analysis which is required by the modern cases. If he had done, he would have appreciated that the connections with Great Britain and British employment law were indeed overwhelmingly closer than with any other country.
- Secondly, he submitted that the Employment Judge, perhaps because he did not carry out the comparative exercise required, did not mention and left out of account a whole range of factors which ought to have born upon his decision.
- Thirdly, he submitted that the Employment Judge's analysis shows that he only considered the last period of employment when making his assessment. He submitted that the Employment Judge thereby confused the Claimant's employment relationship, which had continued over many years in different locations, with his particular role.
- On behalf of the Respondent Mr James Laddie QC firstly submitted that the Employment Judge identified and applied the correct legal test. The Employment Judge considered whether the Claimant fell within the identified categories within Serco because this was part of the Claimant's case. But he did not restrict himself to the identified categories. His reasoning shows that he looked to see whether there were "connections of sufficient strength to displace the general rule" (paragraph 44). Even if he did not explicitly carry out a comparative exercise, this was not fatal to his decision: see Dhunna at paragraph 43.
- Mr Laddie secondly submitted that the Employment Judge plainly had in mind the list of factors upon which Mr Stuart relied: many of them were listed in his findings of fact. The Employment Judge was not required to repeat them all in his conclusions. It was sufficient that he identified how the law had been applied to those findings to reach his conclusions: see Rule 62(5) of the Employment Tribunal Rules of Procedure 2013. He took me to familiar cases relating to the giving of reasons by Employment Tribunals. The Reasons explained why the Claimant had lost his case and identified how the Employment Judge dealt with principal important controversial points.
- Finally, Mr Laddie submits that the Employment Judge was correct to concentrate on the Claimant's employment in Bangladesh immediately prior to dismissal. This was correct in principle: see Serco at paragraph 27. It was also the way in which Claimant argued the case below, and on established principles it is not open to him to argue a different point on appeal.
- I can begin with Mr Stuart's third submission. I reject it. The Employment Judge was correct to focus on the Claimant's employment in Bangladesh immediately prior to his dismissal. This is indeed in line with Serco, where Lord Hoffman said (paragraph 27):
"27. Since 1971 there has been a radical change in the attitude of Parliament and the courts to the employment relationship and I think that the application of section 94(1) should now depend upon whether the employee was working in Great Britain at the time of his dismissal, rather than upon what was contemplated at the time, perhaps many years earlier, when the contract was made. I would therefore expect Mrs Carver's case to be decided differently if it came before the courts today. The terms of the contract and the prior history of the contractual relationship may be relevant to whether the employee is really working in Great Britain or whether he is merely on a casual visit (for example, in the course of peripatetic duties based elsewhere) but ordinarily the question should simply be whether he is working in Great Britain at the time when he is dismissed. …"
- This part of Lord Hoffman's opinion was written in the context of an enquiry as to whether the employee was working in Great Britain; he did not explicitly repeat it later in his opinion when he addressed expatriate employment specifically. But the same reasoning must in my opinion apply.
- I have, however, reached the conclusion that the Claimant established an overwhelmingly closer connection with Great Britain and with British employment law than any other system; and that Mr Stuart's first submission is partly correct and his second submission correct. While the Employment Judge set out the law correctly he did not carry out in any structured way the exercise of looking at the factors as a whole pointing towards and away from a connection with Great Britain and with British employment law; and his conclusions show that he left out of account factors which point strongly in favour of the Claimant's case.
- I will begin with looking at the circumstances which point to a closer connection with Great Britain and with British employment law than any other system - keeping in mind that this is the test to be applied because the Claimant is truly expatriate.
- Firstly, there is the fact, never unimportant, that he is a UK citizen recruited in the UK to work for a UK organisation. Secondly, there is the fact that the contract of employment provides for English law to be applicable. This is also an important factor. These factors, however, are not conclusive on their own; they do not on their own have the requisite exceptional character.
- The third factor is that the Claimant was entitled to a Civil Service pension - an entitlement granted by a UK Act of Parliament which specifically added the Respondent to a list of institutions of a generally public or governmental nature. This is a remarkable feature to find in the contract of employment of an expatriate employee. It creates another strong link to the UK and to UK employment law: a Civil Service pension is a benefit of enormous value, itself governed by UK statutory provision. It also points to the particular standing of the Respondent, to which I will return in a moment. This pension was not granted to locally employed teachers; the Claimant received it because he was in the special category of being UK appointed staff.
- The fourth factor is that the Claimant's salary was subject to a notional deduction for UK income tax to maintain comparability with the position if he were working in the UK. This again is an exceptional provision to find in the contract of an expatriate employee.
- The fifth factor is the nature of the Respondent. It is, as it describes itself, a "non departmental public body". Its status for pension purposes reflects the fact that it belongs to a list of organisations which, while not directly part of government, are recognised as playing such a part in the life of the nation that it is right to afford a Civil Service pension to their employees.
- These factors, taken together, to my mind establish a quite exceptional degree of connection with Great Britain and British employment law.
- Mr Stuart relied on other factors: the Claimant could use the FCO diplomatic bag; his salary was paid in London and funded in London, not from the local TC in Bangladesh; he had statutory sick pay; his contractual holiday rights were related to UK based trips, and the like. These seem to me to be outworkings of the basic factors which I have identified. His right to use of the FCO bag facility, while quite striking, is really an outworking of the Respondent's status as a non departmental public body which might be expected to have governmental links. These factors confirm the exceptional degree of connection with Great Britain and British employment law.
- I turn to consider the factors which might be said to point the other way.
- I can see very little to establish any connection with Bangladeshi employment law; the Claimant's rights were derived from his contract which was governed by English law, and it is fanciful to suppose that the parties intended that he would enforce them by bringing proceedings in Bangladesh. Moreover his stay in Bangladesh was always intended to be short term.
- There was of course an important connection with Bangladesh while the Claimant was employed there: he was full-time, running a language centre, working with locally employed staff and expected to ensure that it broke even. The Employment Judge was entitled to say that he worked in a business which was carried on locally, was managed locally and substantially relied on its own fee income - indeed, it was expected to be self sufficient. As against this, the Respondent was not a profit making business; the TC was part of the operation of the Respondent, a UK charity and public body; and it was part of a broader operation intended to serve as the UK's international organisation for cultural relations and educational opportunities. Moreover he was expected to stay in Bangladesh only for a limited period and then to move on elsewhere, as he had done throughout his career.
- I have therefore concluded, even without taking into account the provision of the contract concerning the Official Secrets Act 1989, that when the requisite comparative exercise is carried out the Claimant established the "overwhelmingly closer connection" with Great Britain and British employment law. I have reminded myself that respect is due to the fact finder's view and that whether the test is satisfied will often be a question of degree. In my judgment, given the facts which were found by the Employment Judge, as a matter of law territorial jurisdiction was established.
- For reasons which I have explained, the reference in the contract to the Official Secrets Act 1989 was in my judgment yet another factor which is indicative of the connection with Great Britain; and it is exceptional to find it in the contract of an expatriate employee who is not a member of the Civil Service or the security services or the armed forces.
- It follows that the appeal will be allowed; and I will declare that the Claimant is entitled to bring his claims before the Employment Tribunal.
Published: 30/08/2016 09:58