British Council v Jeffery

The Court of Appeal considered the territorial reach of United Kingdom employment legislation where employees work outside Great Britain. The court applied the established approach derived from Lawson v Serco and subsequent authority: the place of work has a strong territorial pull, but that can be displaced where there is a sufficient connection between the employment relationship and Great Britain and British employment law. The panel addressed two recurring issues: whether the sufficient-connection question is one of fact or law (affecting appellate review) and whether an express contractual choice of English law is a relevant factor in the Lawson inquiry.

In Jeffery the court held that the Employment Appeal Tribunal was entitled to conclude that, on the facts found by the Employment Tribunal, the Claimant’s employment had an overwhelmingly closer connection with Great Britain because of a number of exceptional connecting factors (notably an express choice of English law, entitlement to a Civil Service pension, a notional UK tax adjustment and the British Council’s public character), and so the ET had jurisdiction to hear statutory claims. In Green the court held that the ET’s conclusion that the claimant’s work was sufficiently connected with Saudi Arabia rather than Great Britain was open to be reached on the facts; the EAT was wrong to treat the ET as having disregarded the contractual choice of English law but, on the balance of matters, the Court of Appeal concluded that the statutory whistleblowing and unfair dismissal claims could not properly be pursued in Great Britain on the particular facts of Green. The panel emphasised that the sufficient-connection inquiry is a comparative, evaluative multifactorial exercise and that the intensity of appellate review should respect the primary fact-finder while allowing specialist appellate tribunals scope to ensure consistency.

This Court of Appeal judgment concerns two appeals from Employment Appeal Tribunal decisions about the territorial reach of the Employment Rights Act 1996 and related statutory rights where employees worked wholly or mainly outside Great Britain.

• Parties and facts (Jeffery): The British Council employed Mr Jeffery, a United Kingdom citizen, who lived and worked abroad for most of his career and was based in Bangladesh as a teaching centre manager. His written contract was governed by English law, he had entitlement to the Civil Service pension, his salary arrangement included a notional UK tax deduction and he was told that the Official Secrets Act could apply to him. He resigned and brought ET claims for unfair dismissal, whistleblower detriment and discrimination. The ET held it had no jurisdiction; the EAT reversed.
• Parties and facts (Green): SIG Trading Ltd employed Mr Green to work in Saudi Arabia while he lived in Lebanon and commuted to KSA. His contract was in the form of an English contract and expressly governed by English law, but the ET found he worked for a separate Saudi operation and was an expatriate whose work was effectively local to KSA. He brought whistleblowing/detriment and automatic unfair dismissal claims; the ET dismissed for want of jurisdiction; the EAT allowed part of his appeal and remitted on the basis that the ET had disregarded the contractual choice of English law.

Nature of the applications: statutory employment claims were pursued under the Employment Rights Act 1996 (including s.94(1) unfair dismissal, s.103A and s.47B for whistleblowing) and discrimination claims under the Equality Act 2010; both appeals raised the legal threshold question whether the ET had territorial jurisdiction to entertain such statutory claims.

Issues framed by the court: (i) whether the sufficient-connection question is to be characterised principally as a question of fact (with limited appellate review) or a question of law; (ii) whether an express contractual choice of English law is a relevant factor in the Lawson sufficiency-of-connection assessment; and (iii) whether whistleblowing claims require any special treatment for territorial reach or engagement of Convention/Charter rights.

Reasoning and outcome in brief: the court treated the sufficient-connection question as an evaluative multifactorial factual question (subject to appellate law review where the ET has taken into account wrong factors or omitted relevant ones). The Court accepted that an express choice of English law is a relevant factor (though not in itself decisive) and that such factors as civil-service pension entitlement and tax equalisation can significantly strengthen the connection with Great Britain. The panel declined to accept that Convention article 10 or the EU Charter required a wider territorial jurisdiction for whistleblowing claims. Applying those principles, the court dismissed the British Council’s appeal in Jeffery (upholding the EAT’s finding of jurisdiction) and dismissed Mr Green’s appeal while allowing SIG’s cross-appeal (so that the ET’s original dismissal of the statutory claims stands, subject to the contractual claim). The court emphasised the specialist appellate tribunal’s role in promoting consistency but that review must respect the ET’s evaluative judgments unless wrong in law.

This was an appellate disposition. In Jeffery the appellant (the British Council) appealed but the Court of Appeal dismissed the appeal: the EAT had been entitled to conclude that, on the facts found, the Claimant’s employment had an overwhelmingly closer connection with Great Britain and British employment law and the ET therefore had jurisdiction. The rationale was that multiple exceptional connecting factors (including an express choice of English law, entitlement to Civil Service pension rights, a notional UK tax arrangement and the British Council’s public character) overcame the territorial pull of the place of work. In Green the claimant’s appeal was dismissed and the respondent’s cross-appeal allowed: the ET’s conclusion that the claimant was an expatriate working for a local Saudi Arabia operation was a permissible factual evaluation and the statutory whistleblowing and unfair dismissal claims were outside the tribunal’s territorial jurisdiction on the facts. The court retained that the sufficient-connection inquiry is a comparative multifactorial evaluative exercise and that an express choice of English law is a relevant factor but not, by itself, decisive.

Appeals to the Court of Appeal from decisions of the Employment Appeal Tribunal (Jeffery: judgment of HH Judge Richardson reversing the Employment Tribunal; Green: judgment of HH Judge Eady QC upholding the Employment Tribunal on jurisdictional objection in part and remitting on a point). The underlying Employment Tribunal decisions were preliminary rulings on jurisdiction: in Jeffery the ET (Employment Judge Pearl) held no jurisdiction (judgment sent 1 June 2015) and the EAT allowed the claimant’s appeal; in Green the ET (Employment Judge Hepworth) held no jurisdiction (judgment sent 18 August 2016) and the EAT allowed the claimant’s appeal on one ground and remitted the matter; the Court of Appeal resolved both appeals as described above. Neutral citation for this judgment: [2018] EWCA Civ 2253.