The British Council v David Jeffery
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Underhill,Lord Justice Peter Jackson |
| Judgment Date | 16 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2253 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/3797 |
| Date | 16 October 2018 |
[2018] EWCA Civ 2253
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Longmore
and
Lord Justice Peter Jackson
Case No: A2/2016/3797
A2/2017/1650
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HH Judge Richardson; HH Judge Eady QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Laddie QC (instructed by Mills & Reeve LLP) for the Appellant inJeffery
Mr James Stuart (instructed by Pitmans Solicitors) for the Respondent inJeffery
Mr Edward Kemp and Mr Grahame Anderson (instructed by Slater & Gordon (UK) LLP) for the Appellant inGreen
Mr Bruce Carr QC (instructed by Pinsent Masons LLP) for the Respondent inGreen
Hearing dates: 15 th & 16 th May 2018
Judgment Approved
INTRODUCTION
The two appeals before us, to which I will refer for short as Jeffery and Green, concern the jurisdiction of the Employment Tribunal to entertain claims by employees working outside Great Britain. In Jeffery the Claimant lived in Bangladesh, where he worked for the British Council (“the Council”). The ET held that it had no jurisdiction to entertain his claims of unfair dismissal, whistleblowerdetriment and discrimination, but the Employment Appeal Tribunal reversed that decision. In Green the Claimant lived in Lebanon and was employed by the Respondent, SIG Trading Ltd (“SIG”), to work for it in Saudi Arabia. The EAT upheld the ET's decision that it had no jurisdiction to entertain his claims of whistleblower detriment and unfair dismissal.
The question of the territorial reach of British employment legislation has notoriously given rise to problems in recent years and has produced a plethora of reported cases, including one decision of the House of Lords and two of the Supreme Court – Lawson v SercoLtd [2006] UKHL 3, [2006] ICR 250; Duncombe v Secretary of State for Children, Schools and Families (no. 2) [2011] UKSC 36, [2011] ICR 1312; and Ravat v Halliburton Manufacturing & Services Ltd [2012] UKSC 1, [2012] ICR 389. The effect of those decisions has been fairly recently reviewed in this Court in Bates van Winkelhof v Clyde & Co LLP [2012] EWCA Civ 1207, [2013] ICR 883, and Dhunna v CreditSights Ltd [2014] EWCA Civ 1238, [2015] ICR 105. It will not be necessary in these appeals, and would indeed be likely to be positively unhelpful, to attempt a further comprehensive survey of that well-travelled ground. The position as now established by the case-law can be sufficiently summarised for the purpose of the cases before us as follows:
(1) As originally enacted, section 196 of the Employment Rights Act 1996 contained provisions governing the application of the Act to employment outside Great Britain. That section was repealed by the Employment Relations Act 1999. Since then the Act has contained no express provision about the territorial reach of the rights and obligations which it enacts (in the case of unfair dismissal, by section 94 (1) of the Act); nor is there any such provision in the Equality Act 2010.
(2) The House of Lords held in Lawson that it was in those circumstances necessary to infer what principles Parliament must have intended should be applied to ascertain the applicability of the Act in the cases where an employee works overseas.
(3) In the generality of cases Parliament can be taken to have intended that an expatriateworker – that is, someone who lives and works in a particular foreign country, even if they are British and working for a British employer – will be subject to the employment law of the country where he or she works rather than thelaw of Great Britain, so that they will not enjoy the protection of the 1996 or 2010 Acts. This is referred to in the subsequent case-law as “the territorial pull of the place of work”. (This does not apply to peripatetic workers, to whom it can be inferred that Parliament intended the Act to apply if they are based in Great Britain.)
(4) However, there will be exceptional cases where there are factors connecting the employment to Great Britain, and British employment law, 1 which pull sufficiently strongly in the opposite direction to overcome the territorial pull of the place of work and justify the conclusion that Parliament must have intended the employment to be governed by British employment legislation. I will refer to the question whether that is so in any given case as “the sufficient connection question”.
(5) In Lawson Lord Hoffmann, with whose opinion the other members of the Appellate Committee agreed, identified two particular kinds of case (apart from that of the peripatetic worker) where the employee worked abroad but where there might be a sufficient connection with Great Britain to overcome the territorial pull of the place of work, namely (a) where he or shehas been posted abroad by a British employer for the purposes of a business conducted in Great Britain (sometimes called “the posted worker exception”) and (b) where he or she works in a “British enclave” abroad. But the decisions of the Supreme Court in Duncombe and Ravat made it clear that the correct approach was not to treat those as fixed categories of exception, or as the only categories, but simply as examples. In each case what is required is to compare and evaluate the strength of the competing connections with the place of work on the one hand and with Great Britain on the other.
(6) In the case of a worker who is “truly expatriate”, in the sense that he or she both lives and works abroad (as opposed, for example, to a “commuting expatriate”, which is what Ravat was concerned with), the factors connecting the employment with Great Britain and British employment lawwill have to be specially strong to overcome the territorial pull of the place of work. There have, however, been such cases, including the case of British employees of government/EU-funded international schoolsconsidered in Duncombe.
(7) The same principles have been held by this Court to apply to the territorial reach of the 2010 Act: see R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438, [2016] ICR 975.
I emphasise that this is not intended as a comprehensive summary of the effect of the decided cases. I am simply setting the background for the issues that arise in these appeals.
There are two issues which are common to both the appeals before us:
• The first is whether the sufficient connection question is to be characterised as a question of fact or law: the importance of the characterisation is that it determines the scope of the review permissible on appeal.
• The second is whether, in answering the sufficient connection question, it is relevant that the contract of employment contains a provision to the effect that it will be governed by English law.
However, the issues arise in different ways in the two appeals and there are also issues peculiar to the reasoning of the ET in each appeal. Accordingly, it will be more convenient to deal with each appeal in turn. That means that the common points will be principally considered in the context of Jeffery, which is the earlier of the two; but I will take into account the submissions made by counsel in Green. Green also raises a question of general application about whether the rules are any different in the case of whistleblower claims.
In Jeffery the Council is represented by Mr James Laddie QC, and Mr Jeffery by Mr James Stuart, both of whom also appeared in the ET and the EAT. In Green MrGreen is represented by Mr Edward Kemp, and SIG by Mr Bruce Carr QC. Mr Kemp has represented Mr Green throughout, but SIG was represented in the ET by Mr Alexander Modgill of counsel and in the EAT by Mr Carr.
A . JEFFERY
THE FACTS
As regards the facts found by the ET, I gratefully reproduce verbatim at paras. 6–14 below the clear and comprehensive summary of the facts in the judgment of HH Judge Richardson in the EAT.
The Council is a public corporation established by Royal Charter. It is governed by a Board of Trustees. It is a registered charity. It describes itself as “the United Kingdom's international organisation for cultural relations and educational opportunities”. It emphasises that its staff are public servants and are not government employees or part of the UK civil service.
The Royal Charter determines the scope of its work as being to:
“a. promote cultural relationships and the understanding of different cultures between peoples of the UK and other countries;
b. promote a wider knowledge of the UK;
c. develop a wider knowledge of the English language;
d. encourage cultural, scientific, technological and other educational co-operation between the UK and other countries.”
As part of its work the Council runs teaching centres (“TCs”) in many parts of the world. They operate in a similar way to private language schools, offering English courses to students of all ages. There were three such centres in Dhaka in Bangladesh. Their purpose was to help local people, not expatriates, and they were integrated into the local community.
Although there is a teaching centre department based in London the great majority of operational decisions were taken at a regional, country or local level. Subject of course to the governance of the Board of Trustees, the TCs have a high degree of financial and commercial autonomy. Thus in Bangladesh the TCs are funded entirely from fees raised in Bangladesh from either the many thousands of students attending the centres or from corporate clients. Salaries and expenses are generally met by TCs locally. The money of UK taxpayers is not used to support them. The Employment Judge said that the business was carried out locally,...
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