The British Council v Jeffery & Ors

An employee who lives and works abroad ordinarily falls under the employment law of the workplace. British statutory employment protection applies only where the employment has a sufficiently strong connection with Great Britain and British employment law. A true expatriate requires an especially strong connection.

The tribunal must compare all relevant connections rather than fit the employment into fixed categories. An English governing-law clause is relevant but cannot, alone, confer statutory protection. The parties cannot contract into an employment tribunal’s jurisdiction.

The evaluation attracts restrained appellate review. Whistleblowing and freedom of expression do not justify a wider territorial test where the employment relationship itself falls outside the United Kingdom’s jurisdiction.

These conjoined appeals concerned employees living and working in the Middle East or South Asia for British employers.

Mr Jeffery worked for the British Council in Bangladesh. The Employment Tribunal dismissed his unfair dismissal, whistleblowing and discrimination claims for want of territorial jurisdiction. The Employment Appeal Tribunal reversed that decision after identifying significant connections with Great Britain.

Mr Green lived in Lebanon and worked principally in Saudi Arabia for SIG Trading Ltd. Both tribunals concluded that his whistleblowing claims fell outside British territorial jurisdiction, although the Employment Appeal Tribunal ordered reconsideration because it thought the tribunal had disregarded an English governing-law clause.

The central issues were the sufficient-connection test, the scope of appellate review, the relevance of an English choice-of-law clause and whether whistleblowing claims attracted a wider territorial rule.

1. Disposition. The British Council’s appeal in Jeffery was dismissed. Mr Green’s appeal was dismissed and SIG’s cross-appeal was allowed. Mr Green’s statutory claims were dismissed, while his contractual claim under the 1994 Order remained within the tribunal’s jurisdiction.

2. An expatriate who lives and works abroad is ordinarily subject to the employment law of the workplace. British statutory employment protection applies only where connections with Great Britain and British employment law are sufficiently strong to overcome that territorial pull. The categories discussed in Lawson are examples, not fixed exceptions. The tribunal must compare and evaluate the competing connections in the particular case.

3. Longmore and Peter Jackson LJJ regarded the sufficient-connection evaluation as a matter of law founded on primary facts. Underhill LJ regarded the dispositive evaluation as one of fact, reviewable where it fell outside reasonable judgment. All three agreed on the practical standard: an appellate tribunal must be slow to interfere and should do so only when satisfied that the evaluation is wrong, including where relevant matters were omitted or irrelevant matters considered.

4. An express choice of English law is relevant to the sufficient-connection assessment. It may illuminate the parties’ expectations and the employment’s connection with British employment law. It is not determinative and cannot enable the parties to contract into statutory protection. Its weight may depend on whether it was specifically chosen or appeared incidentally in an inapt standard form.

5. In Jeffery, the Civil Service pension, tax-equalisation arrangement, English governing law and the public-service character of the British Council’s work created an exceptionally strong British connection. The Employment Tribunal omitted decisive factors. On the findings made, jurisdiction was the only correct conclusion.

6. In Green, the Saudi operation was factually distinct and the tribunal had performed the required comparative assessment. The Employment Appeal Tribunal had misread the reasons as disregarding the governing-law clause. Whistleblowing claims did not attract a more generous territorial test under article 10 of the European Convention on Human Rights or article 11 of the EU Charter. The employment relationship itself needed the required jurisdictional connection.

1. Court of Appeal (Civil Division): The British Council’s appeal in Jeffery was dismissed. Mr Green’s appeal was dismissed and SIG’s cross-appeal was allowed: [2018] EWCA Civ 2253.
2. Employment Appeal Tribunal: In Jeffery, HH Judge Richardson reversed the Employment Tribunal and held that territorial jurisdiction was established. In Green, HH Judge Eady QC upheld most of the Employment Tribunal’s reasoning but remitted the case because she considered that it had wrongly disregarded the English governing-law clause.
3. Employment Tribunal: The tribunal dismissed Mr Jeffery’s statutory claims for want of territorial jurisdiction. A different tribunal dismissed Mr Green’s statutory claims on the same basis, while accepting jurisdiction over his contractual claim under the 1994 Order.