Jeffery v The British Council

A truly expatriate employee may fall within British employment legislation where the employment relationship has an overwhelmingly closer connection with Great Britain and British employment law than with any other system. The assessment requires a comparative evaluation of all relevant connections, rather than confinement to established expatriate categories.

An English-law contract, UK recruitment and citizenship are relevant but insufficient alone. Their combined force may be exceptional where the employee has a statutory Civil Service pension, remuneration aligned with UK tax treatment, and employment by a UK public body. The tribunal must compare connections, not the merits of competing legal systems.

The claimant was a UK-appointed employee of the British Council who had worked abroad for most of his career. At the time of his resignation he managed a teaching centre in Bangladesh. He brought claims for constructive unfair dismissal, whistleblowing detriment and dismissal, and discrimination under the Employment Rights Act 1996 and the Equality Act 2010.

The Employment Tribunal held that it lacked territorial jurisdiction because he was a classic expatriate employee working in a locally managed and funded business. His appeal concerned whether his employment nevertheless had the exceptionally strong connection with Great Britain and British employment law required for a truly expatriate employee.

1. Appeal allowed. The Employment Tribunal had correctly stated the governing law but erred by failing to conduct a structured comparative evaluation of the factors connecting the employment with Great Britain and British employment law.

2. A truly expatriate employee must establish an overwhelmingly closer connection with Great Britain and British employment law than with any other legal system. The employee need not fit an established category of expatriate employment. The relevant inquiry concerns the employment immediately before dismissal, although contractual terms and history may remain relevant.

3. The claimant's UK citizenship and recruitment, and his English-law contract, were important but not decisive factors. Their weight was substantially reinforced by his statutory entitlement to a Civil Service pension, a notional UK tax deduction maintaining parity with UK-based staff, and the British Council's status as a UK charity and non-departmental public body. The availability of diplomatic-bag facilities and other UK-linked terms confirmed those exceptional connections.

4. Although the claimant worked full-time in Bangladesh for a locally managed teaching centre, his contractual rights derived from English law, there was little basis for connecting those rights with Bangladeshi employment law, and the posting was intended to be temporary. The British Council was not a profit-making local business but part of a wider UK public body's international operation.

5. The contractual reference to the Official Secrets Act 1989 did not make the claimant a civil servant or generally subject him to that Act. Its exceptional inclusion nevertheless provided a further indication of a connection with Great Britain. On the facts found, territorial jurisdiction was established as a matter of law. The Tribunal declared that the claimant was entitled to bring his claims before the Employment Tribunal.

• Employment Appeal Tribunal: allowed the claimant's appeal and declared that the Employment Tribunal had territorial jurisdiction.
• Employment Tribunal, London (Central): Employment Judge Pearl held that it lacked jurisdiction over the claims because the claimant worked outside Great Britain.