Shuhrat Rajabov v Foreign and Commonwealth Office

For an employee working abroad, territorial jurisdiction depends upon an evaluative assessment of whether the employment relationship has a stronger connection with Great Britain than with the foreign country. The prospect that the employer will successfully rely on diplomatic or state immunity in the local courts is relevant but not determinative. It does not itself establish a close connection with Great Britain.

Under section 111(2) of the Employment Rights Act 1996, a claimant’s reasonable uncertainty about essential facts may prevent timely presentation. Mere doubts about the merits of a claim, where its factual basis is known, do not. A further period must also be reasonable.

The appellant was locally employed as a Programme Manager and Finance Lead at the British Embassy in Dushanbe, Tajikistan. He was dismissed for redundancy on 30 June 2018 and presented an unfair-dismissal claim on 2 March 2019.

At a preliminary hearing on 20 December 2019, the Employment Tribunal held that it lacked territorial jurisdiction because the employment had a closer connection with Tajikistan than with Great Britain. It also held that the claim was out of time. The appellant appealed, contending that the tribunal had given insufficient weight to diplomatic immunity and an alleged assurance of protection under United Kingdom whistleblowing law, and had materially erred concerning an email when deciding limitation.

1. Appeal dismissed. The tribunal had correctly directed itself that, where work is performed abroad, the issue is whether the employment relationship has the stronger connection with Great Britain rather than the foreign country. The answer is evaluative. An appellate court may interfere only for an identified error in the evaluative exercise.

2. The tribunal was entitled to find a closer connection with Tajikistan. The Tajik governing law, local recruitment, residence, tax and social-security contributions were all relevant factors. The respondent’s connection with the United Kingdom Government did not outweigh them.

3. The likelihood that the respondent would invoke diplomatic or state immunity in Tajik courts, leaving the appellant without a local remedy, was relevant but not decisive. It neither created a special jurisdictional category nor intrinsically established a closer connection with Great Britain. The tribunal had considered the point and was entitled to give it limited weight.

4. The tribunal’s rejection of the alleged assurance of protection under United Kingdom whistleblowing legislation was a factual finding that could not be disturbed. In any event, it was entitled to regard the alleged assurance as of little weight. The alleged analogy with Ravat failed because, among other differences, the appellant’s contract was governed throughout by Tajik law.

5. The tribunal had erred by treating a 4 September 2019 email as if it had been sent in 2018. The error was immaterial. An email of 9 August 2018, together with the ACAS referral and the appellant’s evidence, showed that he knew the essential factual basis of his proposed claim before expiry of the extended time limit on 24 October 2018.

6. Applying section 111(2) of the Employment Rights Act 1996, it was not reasonably practicable test that the appellant could delay merely to obtain greater confidence that his known claim would succeed. In any event, presentation more than four months after the deadline, and more than a month after receiving answers from the respondent, was not within a reasonable further period.

• Employment Appeal Tribunal: dismissed the appeal: [2022] EAT 112.

• Employment Tribunal: at a preliminary hearing on 20 December 2019, dismissed the claim for lack of territorial jurisdiction and because it was presented out of time.