The established rule is that an individual can bring a claim here if their employment has a stronger connection with Great Britain than with the foreign country where they are working.
The claimant in Jeffery v The British Council worked abroad for over 20 years, latterly as a teaching centre manager in Bangladesh. Although he had worked in the UK for two short periods in 2011 and 2012, he did not live or have a home in the UK and returned to the UK only to visit his parents. Teaching centres were run and managed at local level without financial support from the UK.
The claimant brought claims for constructive dismissal and whistleblowing. The Employment Tribunal found that he did not have a sufficiently strong connection to the UK to be able to proceed with his claims.
That decision was overturned by the EAT. The claimant was a genuinely expatriate employee who had established a "quite exceptional" degree of connection with Great Britain and British employment law, despite the fact that the claimant had actively chosen to be an expat employee and did not return to the UK on a regular basis. The Tribunal had failed to take into account factors that were strongly in the claimant's favour, including:
- The claimant was a UK citizen recruited in the UK to work for a UK organisation.
- The contract of employment was governed by English law. This was an important factor (although not, on its own, an exceptional one).
- The claimant was entitled to a civil service pension. This was a benefit of enormous value, governed by UK laws, to which locally employed teachers were not entitled.
- The claimant's salary was subject to a notional deduction for UK income tax to maintain comparability with the position had he been working in the UK - an exceptional provision to find in the contract of an expat.
This is the latest in a succession of cases about the degree of connection with the UK that is necessary for a claim to be brought here. Here the emphasis was on the English law contract, whereas the EAT was much less interested in the fact that the business for which the claimant was responsible was wholly managed and financed outside the UK – a factor that has been seen as significant in previous cases.
Meanwhile, the Court of Appeal has been looking at whether a claim can be brought in the UK against foreign domiciled employees. The general rule under the EU Brussels Regulation is that employees must be sued where they are domiciled. The same principle applies to the European Free Trade Association (Iceland, Liechtenstein, Norway and Switzerland) under the Lugano Convention, in "matters relating to individual contracts of employment".
In Bosworth v Arcadia Petroleum Ltd, proceedings for "unlawful means conspiracy" and breach of fiduciary duty were brought against senior employees in the High Court. They argued that the Court did not have jurisdiction to hear the claims – they could only be sued in Switzerland, where they were domiciled. But the Court of Appeal decided that there had to be a "material nexus" between the conduct complained of and the employment contract for the protection of the Lugano Convention to be available. Here the defendants were de facto CEO and CFO and it was their actions as such that led to the claims. Their employment contracts did not provide for them to act in those capacities. There was no nexus and so the High Court did have jurisdiction. (There was a slightly different approach to this issue in a previous case under the Brussels Regulation, where the view was taken that a contractual claim was likely to relate to the employment contract, although that case did involve more junior employees.)