Rajabov v Foreign and Commonwealth Office

The Employment Appeal Tribunal dismissed the appellant's appeal against a tribunal decision that it lacked territorial jurisdiction and that the unfair dismissal claim was time-barred. The tribunal had applied the Ravat test to determine whether the employment relationship had a closer connection with Great Britain than with Tajikistan and concluded the connection with Tajikistan was stronger, having regard to factors such as governing law, local recruitment, residence, taxation and social security. The tribunal treated the likelihood of diplomatic or state immunity in the Tajik courts as a relevant but not determinative factor. On limitation, the tribunal applied section 111(2) of the Employment Rights Act 1996 and concluded the claim was not presented within the three-month period or within a reasonable further period; the Employment Appeal Tribunal found no error in that reasoning. The tribunal's factual findings about the appellant's assurances and the timing and content of his communications were not impermissible and were not overturned.

Background and parties:

• The appellant was a Programme Manager and Finance Lead employed at the British Embassy in Dushanbe, Tajikistan. He was dismissed on grounds of redundancy and brought an unfair dismissal claim against the Foreign and Commonwealth Office.
• The respondent is the Foreign and Commonwealth Office. The tribunal below (Employment Judge Glennie) dismissed the claim at a preliminary hearing dated 20 December 2019 for lack of territorial jurisdiction and as out of time. The appellant appealed to the Employment Appeal Tribunal.

Nature of the claim and relief sought:

• The appellant sought to pursue a claim of unfair dismissal (alleging, among other things, a connection with whistleblowing) before an employment tribunal in Great Britain.

Issues framed by the court:

• Whether the tribunal had territorial jurisdiction under the Ravat test, i.e. whether the employment had a stronger connection with Great Britain than with Tajikistan.
• Whether the complaint was presented within the statutory three-month time limit or, alternatively, within a reasonable further period under section 111(2) Employment Rights Act 1996.

Key facts relevant to the issues:

• The appellant's contract was governed by the law of Tajikistan; he was locally recruited, resident in Tajikistan and paid tax and social security there.
• The respondent had invoked diplomatic immunity in at least one prior Tajik court case concerning former Embassy employees.
• The appellant asserted he had been told he would be protected by UK law if he raised concerns; the tribunal rejected that assertion as not having been made in his witness statement.
• The effective date of termination was 30 June 2018; the three-month presentation period expired on 24 October 2018 and the claim was presented on 2 March 2019.

Court's reasoning:

• Territorial jurisdiction: The EAT held that diplomatic or state immunity in the local courts is a relevant factor but not determinative. The tribunal had properly weighed factors (governing law, residence, recruitment, taxation, etc.) and reached an evaluative judgment open to it; its rejection of the appellant's asserted assurance of UK protection was a permissible factual finding.
• Limitation: Although the tribunal relied in part on an email which had been misdated by it, the EAT found that there was other evidence (notably an earlier email of 9 August 2018 and the ACAS referral) demonstrating the appellant was sufficiently aware of the basis for his claim before the expiration of the three-month period. The tribunal correctly applied the legal principle that a claimant's doubt as to the merits will only postpone presentation where that doubt is itself reasonable, and concluded the appellant's delay was not reasonably practicable or within a reasonable further period. The EAT found no error in that approach.

Wider context:

• The judgment confirms that the potential lack of a local remedy due to diplomatic or state immunity does not automatically confer territorial jurisdiction on UK tribunals; it follows authorities such as Bryant and more recent decisions upholding the same principle.

The appeal was dismissed. The Employment Appeal Tribunal held that the tribunal had correctly applied the test for territorial jurisdiction and was entitled to evaluate factors pointing to a closer connection with Tajikistan; the tribunal was also entitled to find the claim was time-barred under section 111(2) Employment Rights Act 1996 and that the appellant's delay was not reasonably practicable nor within a reasonable further period.

The claim was first considered by an Employment Tribunal at a preliminary hearing on 20 December 2019 (Employment Judge Glennie), which held it lacked territorial jurisdiction and that it was time-barred. The appellant appealed to the Employment Appeal Tribunal, which delivered judgment as reported at [2022] EAT 112.