In Jeffery -v- The British Council 2016 the EAT overturned a finding of the employment tribunal that a UK-appointed expatriate who had worked abroad for The British Council for over 20 years could not bring claims for constructive dismissal or whistleblowing detriment in the UK. The EAT held that Mr Jeffery had established “a quite exceptional degree of connection with Great Britain and British employment law”.
A number of cases at Court of Appeal and Supreme Court level have established the basic principle that an employee who is working abroad at the time of their dismissal does not have UK employment rights. The general rule is that the place of employment is decisive. However, exceptionally, expatriate employees may be able to bring claims in the UK if they can establish that the connection between the UK and the employment relationship is sufficiently strong to enable a presumption to be made that Parliament must have intended that they should have UK employment protection rights.
The factors that persuaded the EAT that Mr Jeffery should be allowed to proceed with his claims in the UK were:
- He was a UK citizen recruited in the UK to work for a UK organisation;
- His contract of employment was governed by English law;
- He was a member of the Civil Service Pension Scheme (which the EAT described as “a remarkable feature to find in the contract of employment of an expatriate employee”;
- He was paid in sterling and his salary was subject to a notional deduction for UK income tax to maintain comparability with what he would have been paid in the UK;
- He was employed by a public body which played such a part in the life of the nation that it was right to afford a civil service pension to its employees.
The EAT found that these factors, taken together, established “a quite exceptional degree of connection with Great Britain and British employment law”.
Further, the EAT held that, whilst the Official Secrets Act had only limited application to Mr Jeffery, the fact that his contract stated that it applied to him was yet another factor which was indicative of the connection with Great Britain (it would have been exceptional to find it in the contract of an expatriate employee who was not a member of the Civil Service or the security services or armed forces).