Many employees are asked to spend a period of time working abroad. This then raises the interesting question of when, and to what extent, can they bring claims in the UK employment tribunal, should issues arise during or after their employment. This was the question raised in Jefferey v The British Council UKEAT/0036/16/JOJ.
Mr Jefferey was employed by the British Council from 1994. He is a UK citizen, recruited in the UK, but had almost exclusively worked abroad as a teacher, and later a Centre Manager for a Teaching Centre in a variety of locations worldwide. He did not ordinarily live in the UK, did not own a home in the UK (aside from those he rented out) and was described as ‘an enthusiastic expatriate’.
His last positing was in Bangladesh; as a result of a decision (which was later reversed) to close the Teaching Centre which he managed, Mr Jefferey resigned and claimed constructive unfair dismissal (amongst other claims) in the UK employment tribunal. The British Council argued that the UK courts had no jurisdiction to hear his claims, and the employment tribunal initially agreed. However that decision was overturned on appeal.
The starting point, when looking at this issue, is that an employee who is working or based abroad at the time of his dismissal is excluded from the protection afforded by the UK courts. The general rule is that the place of employment is decisive. However, there are exceptions where there is an especially strong connection with Britain and British employment law, overwhelmingly closer than with any other legal system.
Mr Jeffereys was a UK citizen, recruited in the UK, to work for a UK organisation. His employment contract specified that the contract was governed by UK law. These factors were important, but not decisive on their own. The particular features that the employment appeal tribunal focussed on were first, the fact that his salary was subject to a notional deduction for UK income tax. Secondly, that he was entitled to a Civil Service Pension; this created a strong link with the UK and with UK employment law. Thirdly, the British Council was a ‘non departmental public body’. The work that it undertook was clearly considered to be in the interests of the nation.
It was fanciful to suggest that Mr Jeffereys could try and enforce his UK employment law governed contract in Bangladesh; his stay there was always intended to be short term as the nature of his duties meant that he travelled widely around the world. Moreover, although the teaching centre where he was based was integrated into the local community and was effectively self-funded (thorough fees from students and grants from local organisations), these factors, although persuasive enough for the employment tribunal to conclude that there was not a sufficiently strong connection with the UK, were considered by the employment appeal tribunal in the context of the work of the British Council to be part of a broader operation intended to serve as the UK’s international organisation for cultural relations and educational opportunities.
This case serves to highlight how limited the scope is for expatriate employees to rely on the UK courts, but also how tricky it can be to ascertain whether the legal exception has been met. The range of factors that can be considered are wide and ultimately it will be a decision based on the weight that those factors carry in any given situation.
Safia Tharoo, Barrister, 42 Bedford Row, London
