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Lamb Chambers’ James Stuart secures landmark expatriate employment rights ruling

An important precedent for employees working for UK organisations abroad

Lamb Chambers’ James Stuart, working with Pitmans LLP, has secured a landmark employment rights ruling from the UK Employment Appeal Tribunal, on behalf of a former employee of The British Council who was working for the organisation in Bangladesh.

The Tribunal examined the nature of the Claimant’s employment and ruled that he was entitled to have his claim for unfair dismissal, whistle-blowing detriment and discrimination, heard in the UK, under the Employment Rights Act 1996 and Equality Act 2010.

The ruling sets a precedent not only for employees of The British Council, but potentially for the HR policies of any organisation employing people overseas.

Background to the ruling

The Claimant was stationed in Bangladesh and the Respondent argued that local law should govern his employment rights and that the UK Employment Tribunal had no jurisdiction to hear his claims. The Tribunal however identified a variety of factors that established his employment rights under UK law, including:

  • As a ‘non-departmental public body’, The British Council clearly played an important role in UK national life and was therefore a UK employer;
  • The Claimant was entitled to a UK Civil Service pension, his salary was paid in Sterling and funded from London, and he qualified for Statutory Sickness Pay;
  • Unlike locally employed staff, the Claimant had his salary reduced by the income tax equivalent that he would have paid had he been UK-based . This was intended to achieve parity with UK-based equivalent employees;
  • His holiday benefits and entitlements were linked specifically to trips to the UK and additionally he was allowed to use the FCO diplomatic bag;
  • His contract contained reference to the Official Secrets Act 1989, which is not usually part of an expatriate employment contract.

Ramifications

James Stuart comments:

“The Employment Appeals Tribunal’s ruling has highlighted the potential for applying UK employment laws and rights to expatriate employment, where the particular factual circumstances illustrate a particularly strong connection with Great Britain.  This could have ramifications for many international employers and employees – and especially those with strong links to the UK.

“If, as a solicitor, HR adviser or recruiter you are discussing expatriate employment with a potential employer or employee, you should keep in mind the possibility of falling within the jurisdiction of the UK Employment Tribunal.   Factors such as express agreement as to national employment status, local remuneration and the legal jurisdiction under which any employment dispute should be heard, can be negotiated as part of the contract.

“Interestingly, the judgment was influenced by factors such as the Claimant’s access to the Diplomatic Bag and holiday benefits being linked to UK travel. This highlights the importance considering the potential effect of even apparently unconnected details in employment contracts and closely managing employee benefits.

“It would certainly be advisable for any organisation employing expatriate staff to review their HR policies and local practices and not to assume that expatriate employees cannot bring claims in the UK Employment Tribunals.”

Case reference

Mr D Jeffery Appellant vs The British Council Respondent Appeal UKEAT/0036/16/JOJ

James Stuart / 7th Sep 2016


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