Labour & European Law Review Weekly Issue 491 12 October 2016
Tribunals can only hear a claim if the complainant can show a “sufficiently close connection” with Great Britain and British employment law. In Jeffery v The British Council, the Employment Appeal Tribunal (EAT) held that an expatriate employee whose salary was subject to UK tax and who was entitled to a civil service pension could satisfy the rule.
Mr Jeffery, a UK citizen, had worked abroad for the British Council for many years. In August 2012 he became one of their managers at a teaching centre in Bangladesh. His contract expressly stated that it was governed by the laws of England and Wales, his salary was paid in sterling, he was entitled to membership of the Civil Service Pension Scheme and his employment was pensionable.
He was highly successful at his job and “turned round” the teaching centre for which he was responsible so that it made a profit. However, a decision was then made to close the centre which he resisted. Although the decision was reversed, he resigned shortly afterwards and brought claims under the Employment Rights Act 1996 and the Equality Act 2010. The British Council argued that the tribunal had no jurisdiction to hear his claim.
Noting that Mr Jeffery had been based “wholly abroad” for 18 years and had no home in the UK, the tribunal said he was subject to the general rule that the place of employment should provide the appropriate legal system, unless an exception applied.
It concluded that the connections Mr Jeffery had to the UK were not sufficiently compelling to displace that rule. The fact that his employment was under an English contract for an English concern was “not a compelling factor”.
The EAT, however, allowed the appeal holding that the tribunal judge failed to “carry out in any structured way the exercise of looking at the factors as a whole” which pointed to a connection with Great Britain and British employment law.
These included the fact that Mr Jeffery was a UK citizen recruited in the UK to work for a UK organization; and that his contract was governed by the laws of England and Wales. On their own, these would not be enough but there were additional factors which included the fact that he was entitled to a civil service pension, a very unusual feature to find in the contract of an expatriate employee.
In addition, his salary was subject to a notional deduction for UK income tax to maintain comparability as though he were working in the UK, another unusual contractual provision. Finally, the British Council belonged to a list of organisations that while not directly part of government, was recognized as playing “such a part in the life of the nation that it is right to afford a Civil Service pension to their employees”.
The EAT concluded that, taken together, these factors established a “quite exceptional degree of connection” with Great Britain and British employment law. It therefore allowed the appeal which meant that Mr Jeffery was able to bring his tribunal claims.
The judgement shows that even employees who are considered “truly expatriate” ie those who live and work abroad may fall under UK employment law. This case could therefore have repercussions for other UK based employers with expatriate employees where a sufficiently strong connection with the UK can be shown.