Hamam v British Embassy in Cairo & Anor

The territorial reach of United Kingdom employment legislation depends on the sufficient connection question. Employment abroad is covered only exceptionally, where its connections with Great Britain and British employment law are much stronger than its connections with the system of law at the place of work.

Labels such as a “British enclave” are not determinative. They are at most factual considerations within the overall evaluative assessment. A locally engaged employee who lives and works abroad must ordinarily show especially strong countervailing connections. The inability to sue the employer in the local courts because of state immunity is relevant, but is not conclusive. The relative merits of the competing legal systems are irrelevant.

An Egyptian national worked at the British Embassy in Cairo from 2008 until her dismissal in 2017, first as a Visa Section Office Manager and then as Vice Consul. She brought claims for unfair dismissal, race discrimination, victimisation and whistleblowing detriment.

Following a preliminary hearing, the Employment Tribunal held that her employment was not sufficiently closely connected with Great Britain and British employment law for it to have jurisdiction. It considered recruitment, place of work, management, pay, benefits, local law, taxation, nationality, the Embassy’s status, and the handling of the redundancy and whistleblowing complaint.

The claimant appealed, principally contending that the Embassy was a British or extraterritorial enclave and that state or diplomatic immunity prevented an effective claim in Egypt. The central issue was whether the Tribunal had erred in its sufficient-connection assessment.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that it lacked jurisdiction. Its conclusion was neither perverse nor irrational.

2. The governing inquiry was whether the employment had much stronger connections with Great Britain and British employment law than with any other system of law. The inquiry is an evaluative assessment of all relevant facts. It is a mistake to force a case into fixed categories or examples derived from Lawson, including the expression “British enclave”.

3. The claimant was locally recruited, lived and worked principally in Egypt, was locally managed, paid in Egyptian currency into an Egyptian bank account, taxed in Egypt, employed on terms governed by Egyptian law, and dealt with under local employment arrangements. Although employment by the British Government was a close United Kingdom connection, it was substantially the only such connection. The Tribunal was entitled to give it the weight it did.

4. Whether the British Embassy in Cairo could accurately be labelled a British enclave did not decide the case. The Tribunal had considered the Embassy’s inviolability, its role in the local community, and the fact that nobody lived in the compound. Its reference to the British flag did not show that it had disregarded the remaining evidence. The claimant was not an expatriate employee within Lord Hoffmann’s second example in Lawson.

5. Bryant was effectively determinative. The present employment was not sufficiently distinct from that of a locally engaged employee at the British Embassy in Rome, and the claimant’s connection with the United Kingdom was weaker in the material respect that she was neither a British citizen nor domiciliary.

6. State immunity preventing proceedings in Egypt was relevant but not determinative. The comparative advantages of English and Egyptian employment law were irrelevant. The Tribunal’s conclusion that the connections with Great Britain and British employment law were not stronger than those with Egypt was plainly correct.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal upheld the Employment Tribunal’s jurisdictional decision.
• Employment Tribunal: judgment dated 8 December 2018 and sent to the parties on 13 December 2018. It held, after a preliminary hearing, that it had no jurisdiction over the claimant’s statutory employment claims.