Expat entitled to bring claim under UK employment laws
Strong connection to the UK can override general rule that place of work determines which laws apply to employees
In the recent case of Jeffery v The British Council the Employment Appeal Tribunal (EAT) considered the question of when an individual living and working outside the UK may bring claims under the Employment Rights Act 1996 and the Equality Act 2010.
These two pieces of legislation do not specifically mention the extent to which their provisions apply to employment outside the UK. Instead, this question has been explored in case law (Lawson v Serco Ltd) which has established that, as a general rule, the place of work is decisive when determining whether an employee is covered by UK employment law. The courts have also held (Ravat v Halliburton Manufacturing and Services Ltd), however, that in exceptional cases the scope of UK employment law may be extended to those working abroad if they can establish a “sufficiently strong” connection with the UK. In the case of employees who are “truly expatriate” – those who not only work, but live, abroad – an especially strong connection with the UK is necessary before an exception to the general rule can be made.
The claimant, Jeffery, was a UK appointed employee of the British Council, who worked in Bangladesh as a teaching centre manager. He resigned and made a claim at an employment tribunal for, among other things, unfair dismissal and detriment by reason of public interest disclosure, seeking to rely on the provisions of the Employment Rights Act and Equality Act. Jeffery’s claim was dismissed on the grounds that he was not entitled to bring a claim before an employment tribunal.
On appeal, the EAT overturned the tribunal’s decision and ruled that Jeffery had established an “overwhelmingly stronger connection with Great Britain and with British employment law than any other system”. He was therefore entitled to bring a claim at an employment tribunal under the Employment Rights Act and Equality Act.
The EAT held that the tribunal had stated the law correctly but had not considered a range of factors that ought to have influenced its decision. The key factors were as follows:
- Jeffery was a UK citizen, recruited in the UK to work for a UK organisation.
- His contract of employment expressly stated that it was governed by the laws of England and Wales.
- He was entitled to a civil service pension. The EAT pointed out that this was exceptional for an employee who was wholly expatriate, and had created a strong link to the UK and UK employment law.
- His salary was payable in sterling and there was a notional deduction for UK income tax designed to maintain comparability with those working at the same level in the UK. Again, this was considered an exceptional feature to find in the contract of an expatriate employee.
- The teaching centre in Bangladesh where Jeffery worked was considered part of an operation of the British Council, a UK charity and public body that serves as the UK’s international organisation for cultural relations and educational opportunities.
- His contract of employment referred to the Official Secrets Act 1989, which the EAT said was difficult to envisage in the contract of an expatriate “unless his employment had an exceptional connection with the UK”.
These factors, taken together, were enough to establish an exceptional degree of connection with the UK and UK employment law, and meant that Jeffery could bring a claim under the Employment Rights Act and Equality Act.
This case is relevant for UK-based companies with employees posted abroad, often for long periods of time. While the general rule remains that the applicable laws are those of the place of work, this case helpfully outlines some of the features a tribunal ought to consider when determining whether the connection with the UK is sufficiently strong to entitle an individual to bring a claim under UK employment laws, even if he or she is “truly expatriate”.
Martin Tynan is a trainee solicitor and Paul Mander heads the employment team at Penningtons Manches LLP
Story via – http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/09/12/expat-entitled-to-bring-claim-under-uk-employment-laws.aspx