In Jeffrey v. The British Council 2016, the Employment Appeal Tribunal ("EAT") ruled that an employee who had an "exceptional degree of connection" with the United Kingdom could bring claims in the UK even though he had been working outside of the UK for over 20 years. This provides an important exception to the general rule that employees have to be working in the UK to bring employment claims there.
The Claimant brought claims for constructive unfair dismissal under the Equality Act 2010 against the British Council, the Respondent. The Employment Tribunal held that it did not have jurisdiction to hear the claims because the employee worked overseas. The EAT overturned the Employment Tribunal's decision, holding that because the employee has an "exceptional degree of connection" with the UK, he could bring claims in the Employment Tribunal. The EAT focused on 5 factors in determining that the employee could bring a claim in the UK:
- The employee is a UK citizen and was recruited in the UK to work for a UK organization.
- The employee's contract expressly applied English law.
- The employee was entitled to a Civil Service pension, a benefit granted by a UK Act of Parliament.
- The employee's income was subject to a deduction to make his income comparable to what it would have been had he worked in the UK.
- The Respondent was a public body and, while not a part of the government, provided a service.
After looking at these five factors, the EAT ruled that the employee could bring suit in the Employment Tribunal in the UK, even though the employee "at all material times he worked outside the UK" and was, at the time of his resignation, "truly expatriate."
Although the facts in this case are somewhat exceptional, employers should nonetheless be aware that they may not be completely insulated from suit in the UK by their expatriate employees. If the employee has exceptional connections to the UK despite not working in the UK, then expatriate employees who do not work in the UK, may have the right to sue the Company in UK Employment Tribunals.
We would add that the rights of employees to sue their employer in UK Courts (rather than Employment Tribunals) are slightly different and, save in exceptional circumstances, exclusive jurisdiction clauses will be enforced in favor of employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.