Green v SIG Trading Ltd

For an employee who works and lives abroad, the territorial scope of statutory employment protection depends on whether the employment has a sufficiently stronger connection with Great Britain and British employment law than with the foreign country. The assessment is fact-sensitive and comparative.

A binding contractual choice of British law is a material factor in that assessment. It cannot be disregarded merely because the employer used a standard-form contract for convenience. Context may affect the weight of other connecting factors, but it must not cause the tribunal to ignore an objectively relevant agreement.

The Claimant, employed by a United Kingdom company as managing director of its newly established Saudi Arabian business, lived in Lebanon and worked principally in Saudi Arabia. His contract was governed by English law, but the Employment Tribunal at Bradford held that he was an expatriate employee whose employment was more strongly connected with Saudi Arabia and the Middle East than with Great Britain and British employment law.

He appealed under the Employment Rights Act 1996. He challenged the Tribunal’s treatment of the Saudi Arabian budget, its comparative assessment of connections, and its refusal to treat him as a posted worker. The central issue was whether the Tribunal had lawfully assessed the sufficiently close connection required for statutory territorial jurisdiction.

1. Appeal allowed in part. The challenge to the finding that the Saudi Arabian operation had a separate budget failed. Although the finding that its losses were not absorbed into the United Kingdom finances lacked an evidential basis, it was merely illustrative. The underlying finding that the operation had a separately administered budget within the overall United Kingdom budget was supported by the evidence.

2. The applicable inquiry was whether the employment relationship had a sufficiently close connection with Great Britain and British employment law to displace the ordinary territorial pull of the foreign place of work. This was not a closed-category exercise. The Employment Tribunal was entitled to regard the case as requiring a comparative assessment rather than as necessarily falling within the illustrative posted-worker category in Lawson.

3. The assessment was one of fact for a tribunal properly directing itself as to the legal test. It remained an evaluative assessment in which the tribunal could consider the wider context when deciding what weight to give a connecting factor. Thus, it could permissibly treat United Kingdom-based management of the new Saudi Arabian operation as a pragmatic arrangement carrying limited weight.

4. However, the parties’ binding agreement that the employment contract was governed by British law was an objectively material factor. The Tribunal could treat standard-form references to particular statutory rights or territorial covenants with caution. It could not discount the express choice of British law simply because the Respondent said that it had used the standard contract for convenience. That subjective explanation did not detract from the agreed contractual term.

5. By disregarding a relevant factor, or by relying on an irrelevant subjective explanation for it, the Tribunal rendered its conclusion on territorial jurisdiction unsafe. The parties were invited to make written submissions on disposal, including remittal.

• Employment Appeal Tribunal — allowed the appeal in part and held that the Employment Tribunal’s territorial-jurisdiction conclusion was unsafe.
• Employment Tribunal, Bradford — held that it lacked jurisdiction under the Employment Rights Act 1996 because the Claimant’s employment was more strongly connected with Saudi Arabia and the Middle East than with Great Britain and British employment law.