Normally it will be clear that an employment is British and the Equality Act (EqA) applies. This page discusses situations where it is not so clear.
The EqA does not define what connection with Great Britain a worker needs in order to claim. The courts have developed a test – which also applies to unfair dismissal etc – of whether the worker has “sufficient connection” (below) with Britain and its employment laws that it would be appropriate to be able to claim. This is a question of degree. The most important factor is where their work is done, but the tribunal will also consider and balance other connecting factors with Britain and elsewhere. A peripatetic worker (other than a seafarer) can claim if based in Great Britain.
Decisions of the higher appeal courts tend to be about people working wholly overseas: below Working abroad. Subject to the particular facts, a person working wholly abroad may be able to claim in Britain especially if:
- they are a “commuter” worker living in Britain whose employment has sufficient UK connections,
- they work overseas for a business conducted in Britain (which may include remote working), or
- they work in a British or international enclave and either they were recruited in Britain, or the job is linked to their spouse being someone who works in the enclave (eg armed forces) and their spouse was recruited in Britain.
This “sufficient connection” test is normally the only issue that arises, but I also discuss below:
- Different rules which apply to seafarers on ships.
- Complications of jurisdiction and choice of law, particularly if the employment contract states that the law of another country applies.
- The possibility, argued by some, that even after Brexit the EqA may have a wider scope for work done within the European Union: Wider scope through EU law (Bleuse principle) no longer applicable after Brexit?
“Sufficient connection” test
This test was developed for unfair dismissal, but also applies to employment claims under the Equality Act (EqA). The Court of Appeal in Hottak, below confirmed that the test applies to EqA claims. In Ravat v Halliburton (below), 2012 the Supreme Court set out the test as follows:
“whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.”
Para 29. Elsewhere, eg para 35 in the case, the courts talk of “…sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim”.
This is a question of degree. The most important factor is where the work is done, but the employment tribunal will consider and balance other connecting factors.
Connections with British employment law (compared with overseas law) are relevant as well as connections with Great Britain (compared with elsewhere), but for brevity I’ll often just talk about connection with Britain.
This test is expressed in very broad terms. However I give various examples of cases below, summarised under:
“Sufficient connection”: Working in Britain
If the work is ordinarily done in Britain, the Equality Act normally applies.
An exception was:
Fuller v United Healthcare (below), Employment Appeal Tribunal (EAT), 2014
An American expat on an “international rotation assignment” worked about half his time in the UK. He was employed by an American company, his contract said he was based in the US, and he continued to be paid in dollars. He continued to maintain a home with his partner in Texas, living in company-rented accommodation when he was in London. On the facts he could not claim under the EqA.
An example where only a minority of the work was done in Britain but there was an EqA claim:
Clyde & Co v Bates van Winkelhof (below), Court of Appeal, 2012
The claimant was a limited partner in a British-based firm of solicitors. She worked partly in Britain but mostly in Tanzania. The Court of Appeal upheld the tribunal’s decision that various factors created sufficient connection with Great Britain for her to claim.
“Secondments” will depend on the particular facts:
Pervez v Macquarie Bank (bailii.org), EAT, 2010
The claimant had been seconded from Hong Kong to the UK and was “working in London on a settled (and indefinite) basis”. The courts held he was entitled to bring a claim in Britain. However the EAT said: “I should emphasise that my view is based on the circumstances of this particular case. ‘Secondments’ come in all shapes and sizes, and a different conclusion might be appropriate if the secondment were for a shorter time or the employee was less integrated into the business of the company to which he was seconded.”
Note: This case was discussed in Fuller above.
If the situation has evolved over time, a tribunal may need to decide from what time the claimant had sufficient connection with Britain to entitle them to claim:
Partners Group v Mulumba (bailii.org), EAT, 2021
A national of the DR Congo was employed by a US company on an associate programme, under a contract stated to be governed by New York law. She was paid in US dollars. After working elsewhere, she came to London on a temporary placement of three to six months. When the associate programme ended, out of good will she was allowed to stay on working in London for a time, but was dismissed after 18 months in the UK. The EAT remitted the case to the employment tribunal to consider.
The tribunal had said that her employment relationship “evolved” over time, and that the tribunal would not have found a sufficient connection if she moved to London merely on a three-, or six-, month rotation as part of the associate program. The EAT made the point (at para 65-66) that given the tribunal therefore presumably did not see her as initially having enough connection with Britain, if she later did have enough connection it might be necessary for the tribunal to decide when British territorial jurisdiction arose, with the tribunal being able to consider only claims arising after that date.
“Sufficient connection”: Peripatetic workers
For peripatetic employees – such as airline pilots, international management consultants and salesmen – working in several countries with no strong connection to a single one, the question is whether the employee’s base is in Britain: Serco v Lawson, below held that a member of aircrew employed by a Hong Kong airline and assigned Heathrow as his permanent base was entitled to claim in Britain. However there are different EqA rules for seafarers, below.
It is the employee‘s base that matters, which may be different from the employer’s base. The employee’s base may not always be obvious, such as in Olsen v Gearbulk (bailii.org), EAT, 2015 and Windstar Management Services v Harris (bailii.org), EAT, 2016. (Windstar is interesting on the principles, but because it concerned a seafarer, in an EqA claim the EqA ships regulations (below) would apply to its facts.)
“Sufficient connection”: Working abroad
Even if the work is done wholly abroad, there is sometimes a strong enough connection with Great Britain and its employment laws for a claim to be within the territorial scope of unfair dismissal and of the EqA etc. Cases will ultimately depend on their individual facts.
It is easier to have sufficient connection with Britain if one lives in Britain, despite working abroad (though it will still depend on all the facts). The prime example is this Supreme Court decision on a “commuter” worker:
Ravat v Halliburton (below), Supreme Court, 2012
A “commuter” worker lived in Great Britain but worked in Libya on a rotational basis – 28 days in Libya and 28 days back home. There were further factors linking his employment with Great Britain, for example he was remunerated on the normal UK pay and pension structure that applied to the employer’s UK-based employees, he was paid in sterling into a UK bank account, and he had been assured he would continue to have the full protection of UK law while he worked abroad. He was held entitled to claim for unfair dismissal in Britain.
What of those living as well as working abroad? The Supreme Court in Ravat v Halliburton above said these “true expatriates” need an especially strong connection with Great Britain and British employment law before an exception can be made for them.” Lord Hoffman in the House of Lords in Serco v Lawson, below gave examples of when people working and living overseas might have a sufficiently strong connection to claim under British employment law. He said there was very unlikely to be a strong enough connection unless the employer was based in Britain, but something more was needed, such as:
Posted abroad for the purpose of a British business
Lord Hoffman’s first example in Serco, below – of someone who might claim in Britain despite working and living abroad – is an employee posted abroad for the purpose of a business conducted not in the foreign country but in Britain, for example:
- a foreign correspondent of a British newspaper; or
- selling advertising space in the British edition of a British newspaper.
According to a later EAT decision, remote working from abroad could also fall within this head:
Lodge v Dignity & Choice in Dying (below), EAT, 2015
An employee who for personal reasons moved to Australia and continued working remotely as Head of Finance for a British charity was held to have sufficient connection with Britain.
Although in Lord Hoffman’s examples Great Britain would typically overcome the territorial pull of the place of work, the Court of Appeal in Green v SIG Trading, below warned that his observations are not a substitute for careful examination of the facts of the particular case. The actual test to be applied is whether on the facts there is sufficient connection with Great Britain and British employment law. In Green the claimant had argued that he fell within the “posted worker exception”. The Court of Appeal held the tribunal had been entitled to find there was insufficient connection with Britain on the facts.
British and international enclaves etc
Lord Hoffman’s other example in Serco was an employee working “within what amounts for practical purposes to an extra-territorial British enclave in a foreign country”. This related to the facts of the Serco case itself:
Serco v Lawson (below), House of Lords, 2006
The House of Lords held the following could claim unfair dismissal in Britain:
- A security supervisor, working on Ascension Island, whose employer Serco had a contract to service the RAF base there;
- A “UK-Based Youth Worker” with British Forces Germany Youth Service who worked in various MOD establishments in Germany as part of the “civil component” of British Forces in Germany, treated as UK resident for tax and various other purposes.
Later cases have held that (some) employees in an international enclave have a close enough connection with Britain, in particular:
- Ministry of Defence v Wallis, below (schools related to NATO, where the claimants secured their employment purely because they were spouses of members of the Armed Forces posted abroad) and
- Duncombe v Secretary of State for Children, Schools and Families (No. 2), below (European Schools).
One relevant factor there was that the contracts were governed by English law:
Ministry of Defence v Holloway (bailii.org), EAT, 2015
This was an EqA claim by civilian staff at a UK sovereign military base in Cyprus. Like in Wallis they were dependents of service personnel or of accompanying civil servants. Their contracts were governed by SBA [Sovereign Base Area] law. The employment tribunal decided that SBA law would apply English law to their employment contracts, so English law applied to them in any event. Taking all factors into account, the staff could claim in Britain under the EqA.
However the EAT held that SBA law was legally different, even if it applied English law. A legally distinct government, namely the Crown in right of the SBA (rather than in right of the UK) provided for the laws of the SBA. In both Wallis and Duncombe (No. 2) a significant factor was that the claimants, though working overseas, had contracts of employment governed by English law. It was not clear whether this SBA law point would alter the tribunal’s decision, so the EAT sent the case back to the tribunal to reconsider,
At least one claim has succeeded even where the employer was a British public body but there was no British or international “enclave”:
British Council v Jeffery (below), Court of Appeal, 2018
The claimant was a UK citizen recruited in the UK, who worked at British Council teaching centres abroad, spending some years at each. He was not ordinarily resident in the UK. He was dismissed while on a four year posting at a teaching centre in Bangladesh. He was held to be entitled to claim in Britain. On the facts his employment had an overwhelmingly stronger connection with Great Britain than with Bangladesh. For example he was entitled to a Civil Service pension, and his overall contract envisaged him moving countries from time to time rather than being engaged to work in a particular overseas location.
Other cases illustrate that the mere fact of working in a British enclave etc is not enough:
Hottak v Secretary of State for Foreign and Commonwealth Affairs (below), Court of Appeal, 2016
Locally recruited Afghan interpreters for British Armed Forces in Afghanistan were held not to be entitled to claim in Britain. The Court of Appeal said the claimants in Serco had been British citizens recruited in Great Britain by a British employer to work in a British enclave or outpost.
Bryant v Foreign and Commonwealth Office (bailii.org) EAT, 2003
The EAT held that a British national locally engaged to work in the British Embassy in Rome could not claim for unfair dismissal.
The decision in Bryant is important particularly because it was approved and discussed in later House of Lords and Supreme Court decisions:
- The House of Lords (Lord Hoffman) in Serco below specifically commented that Bryant was rightly decided.
- The Supreme Court in Duncombe (No. 2) below (at para 12, see also para 17) said that the teachers in NATO schools in Wallis – recruited because their spouses were members of the British armed forces posted to serve abroad – were in a quite different position from locally engaged “directly employed labour” such as Mrs Bryant whose connection with England was just the fortuitous one of nationality.
- An example of a result similar to Bryant in a more recent embassy case is Rajabov v Foreign and Commonwealth Office (bailii.org), EAT, 2022.
What if someone working wholly abroad has no claim under local law, or perhaps a much more limited claim there than in Britain? See below Technical note: Does overseas law matter?
These examples are not exhaustive
A case need not fall within one of the specific examples listed by Lord Hoffman in Serco, as is illustrated by some of the other cases above. The Supreme Court said in Duncombe (No. 2), below at para 8:
The principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law. There is no hard and fast rule and it is a mistake to try and torture the circumstances of one employment to make it fit one of the examples given [in Serco], for they are merely examples of the application of the general principle.
Also the examples should not be seen as absolute rules (Green v SIG Trading above). Each case depends on its particular facts.
Regulations: Ships and hovercraft
For seafarers on ships and hovercraft, there are special Equality Act regulations on what territorial connection with Great Britain is required: The Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 (legislation.gov.uk) subject to minor amendments in para 22 of the Schedule to The Merchant Shipping (Miscellaneous Provisions) (Amendments etc.) (EU Exit) Regulations 2018 (legislation.gov.uk).
Walker v Wallem Shipmanagement (bailii.org), EAT, 2020
This was an EqA sex discrimination claim which considered the 2011 regulations. The EAT said it was doubtful whether these regulations complied with EU law. The regulations allowed an offshore employment service provider to discriminate, on British soil, when it recruited in Britain personnel to serve on its clients’ foreign flagged ships sailing outside UK waters. Nevertheless the court felt bound to apply the regulations. A re-interpretation of s.81 EqA and the regulations under the Marleasing principle would strain their language too far, and direct effect did not apply as it was a private sector employer.
Definitions of “seafarer”, “ship”, and “hovercraft” are in s.81 EqA. A “seafarer” is a person employed or engaged in any capacity on board a ship or hovercraft.
Regulations: Offshore work
The Equality Act 2010 (Offshore Work) Order 2010 (legislation.gov.uk) deals with such things as territorial waters and exclusive economic zones (EEZ).
Complications of jurisdiction and choice of law
- Which court? Do UK courts and tribunals have power to decide a particular case (‘jurisdiction’)?
- Which law? Which country’s laws must the court must apply in deciding the case (‘choice of law’). This can be different from which country’s courts have jurisdiction. For example a UK tribunal may need to apply German law, at least to some issues, as in Simpson v Intralinks below.
Employers may include provisions in the employment contract trying to specify which law applies and which courts have jurisdiction, but the British courts will not necessarily have regard to those provisions in an EqA claim. An example of a pre-Brexit discrimination case which discussed these issues under older rules:
Simpson v Intralinks (below), EAT, 2012
On the facts, the British employment tribunal was held to have jurisdiction, and it could apply the (British) Sex Discrimination Act 1975 and Equal Pay Act 1970 since they were mandatory rules. This was despite the employment contact stating that any disputes were to be determined by Frankfurt courts and under German law. However, the British employment tribunal had to apply German law in deciding whether there was a contract of employment.
Note: Rules on jurisdiction and choice of law have changed since this case.
I’m not going to go into details on this area, but there are some notes below. There is discussion of the (post-Brexit) rules in International employment cases post Brexit (pdf, fountaincourt.co.uk) by Fountain Court Chambers.
As to whether UK courts have jurisdiction, after Brexit the Brussels Regime (wikipedia.org) no longer applies. However part of the “recast Brussels Regulation” (which applied before Brexit) has been transposed into s.15C Civil Jurisdiction and Judgments Act 1982 (legislation.gov.uk). I’m not going to try to summarise the current position. See the Fountain Chambers link above.
One common situation though where the British employment tribunal has jurisdiction is if the employer is a company registered in Britain, even if the employment contract says another country’s courts have exclusive jurisdiction (s.15C(6)).
Example: Dicey* gives as one example a claimant domiciled in Germany who is employed to work in Germany by a company domiciled in England [ie registered in England, its registered office is in England]. The contract provides for exclusive jurisdiction of the German courts. Dicey says an English tribunal would have jurisdiction to consider claims for sex discrimination and equal pay.
*Dicey, Morris & Collins, The Conflict of Laws, 16ed, 2022 at 11-290.
The English tribunal would also have ‘jurisdiction’ to consider a disability discrimination claim. However the English tribunal could only consider the EqA claim if the case falls within the territorial scope of the EqA – for example the claimant may have “sufficient connection” with Britain if working (in Germany) for purpose of a business being carried on in England (above Working abroad).
Note: Whether there is “sufficient connection” (above) with Britain to claim under the EqA is sometimes called “jurisdiction”. However that is a looser meaning of “jurisdiction” and is different from the stricter meaning of the word discussed here. The sufficient connection test might better be described as setting the “territorial scope” or “territorial reach” of the EqA.
The main situation this question seems likely to arise is if the employment contract says that the contract and/or any disputes are governed by the law of another country. Can the EqA still apply? (This issue is separate from choice of law as one factor in the “sufficient connection” test, below.)
As I understand it, but there are uncertainties, under Rome I (below):
- Because the EqA says it cannot be derogated from by agreement (s.144 EqA), under Article 8 of Rome I a UK tribunal can apply the EqA despite a choice of law clause if, without that clause, the contract would have been governed by UK law under Article 8(2)-(4) – for example if the UK is the country where the employee habitually carries out their work.
- A UK tribunal can apply the EqA in any event (whatever the governing law would have been under Article 8(2)-(4)) if and so far as the EqA is an “overriding mandatory provision” as defined in Article 9 of Rome I. The British courts would need to decide whether (or how far) the EqA falls within Article 9.
(Even if courts can apply the EqA under Rome I, whether the EqA applies will still be subject to the basic “sufficient connection” test (above).)
The EU Rome I Regulations (referred to above) and Rome II Regulations continue in force after Brexit as UK domestic law, subject to amendments in SI 2019/83:. The applicable British law is therefore:
- For contractual claims: Rome I Regulation (legislation.gov.uk), ie Regulation (EC) No 593/2008. Or for older contracts, entered into between April 1991 and 16 Dec 2009 (as in Simpson v Intralinks above), the Rome Convention as set out in Schedule 1 of the Contracts (Applicable Law) Act 1990 (legislation.gov.uk).
- For non-contractual obligations: Rome II Regulation (legislation.gov.uk), ie Regulation (EC) No 864/2007.
Why do I refer particularly to Rome I above? Isn’t the EqA a non-contractual claim? Dicey, Morris & Collins, The Conflict of Laws, 16ed, 2022 at 33-304 says that although the point is not settled, there are good reasons to conclude that an EqA claim would fall within Rome I (contractual claims) rather than Rome II, as an incident of the contractual relationship. If not, Dicey suggests at 33-305 that Art 4(3) of Rome II might arguably achieve a similar result.
Separate issue: choice of law as one factor in “sufficient connection” test
Distinct from the Rome I issues of ‘choice of law’ considered immediately above, a choice of law clause in the employment contract is also one factor – but only one factor among others – in deciding whether there is “sufficient connection” (above) with Great Britain to fall within the EqA. That is particularly so if the choice of law is a specifically-negotiated provision rather than part of a standard form used for convenience (Green v SIG Trading, below at para 132).
Since a contractual term is only one factor in determining connection with Great Britain, one cannot simply contract into an employment being covered by the EqA (British Council v Jeffery, Green v SIG Trading, below at para 62).
British Council v Jeffery, Green v SIG Trading, 2018
British Council v Jeffery, Green v SIG Trading (bailii.org), Court of Appeal, 2018
British Council case (bailii.org)
The claimant was a UK citizen recruited in the UK, who worked at British Council teaching centres abroad. At the time of his dismissal he was at a teaching centre in Bangladesh, where he was expected to be for four years. He was not ordinarily resident in the UK. The teaching centres were largely run and financed locally, and they aimed to help local people. The British Council is a public corporation established by Royal Charter. It described its staff as public servants though they were not government employees (see further below on pensions). His salary was payable in sterling.
The Court of Appeal held he was entitled to claim in Britain for unfair dismissal, discrimination under the EqA, and whisteblowing. The Employment Appeal Tribunal (bailii.org) (EAT) – overturning a tribunal decision – had properly found that his employment had an overwhelmingly stronger connection with Great Britain than with Bangladesh. The EAT had pointed first to the fact that he was a UK citizen recruited in the UK to work for a UK organisation (“never unimportant”), and that his contract of employment provided for English law to be applicable (“important”), but correctly recognised that by themselves these factors could not tip the balance. The three additional factors which the EAT had (rightly) regarded as decisive were:
- Entitlement to a Civil Service pension. Although not a government employee or part of the Civil Service, the claimant was entitled to membership of the Civil Service Pension Scheme. This entitlement was granted by a UK Act of Parliament which specifically added the British Council to a list of institutions of a generally public or governmental nature. Whether or not this fact was “remarkable”, the Court of Appeal agreed it was indeed a factor which strongly connected the claimant’s employment with Great Britain and which would be absent in the case of most expatriate workers.
- Tax equalisation adjustment. The claimant’s salary was subject to a notional deduction for UK income tax to maintain comparability with the position if he were working in the UK. The Court of Appeal agreed with the EAT that what was unusual was that the Council went out of its way to seek to adjust his remuneration so that he was in an equivalent position in net terms to Council employees in the UK – in other words, to cancel out the tax benefits of being an expatriate. This too plainly strengthened the connection of his employment with the UK.
- The nature of the British Council. The EAT had pointed to the role of the Council as a public body. The Council’s lawyer (seeking to persuade the court there was no claim in Britain) argued that while there were doubtless certain functions in which the Council could properly be regarded as being central to British public life, nobody could regard the management of a self-funded overseas English language school as falling among them. The Court of Appeal said the EAT had not believed it was right to treat the Council’s teaching centres simply as commercial language schools: the teaching centre in Bangladesh was non-profit-making and “was part of a broader operation intended to serve as the UK’s international organisation for cultural relations and educational opportunities”. This aligned the nature of the work more closely with British public service than the Council’s lawyer suggested. Even so, the EAT did not treat the nature of the British Council as a decisive factor in its own right. The EAT simply gave it substantial weight in the overall conclusion, and was right to do so.
The Court of Appeal also held the EAT had not been in error in finding that there was very little to establish any connection with Bangladeshi employment law. In support of this the EAT had said that:
- it was “fanciful” to suppose that the parties intended the claimant would enforce his contractual rights by bringing proceedings in Bangladesh. The Court of Appeal agreed it was obvious that an employee whose contractual rights against an English-based employer are governed by English law would, absent special circumstances, seek to enforce them in England. It was important to note that the EAT was referring specifically to the enforcement of the claimant’s contractual rights. The EAT was not saying that it was fanciful to suppose he would have sought to enforce any rights under Bangladeshi employment protection legislation, which was a different (and legally irrelevant) question. In a footnote, the Court of Appeal added that the likelihood of invoking local employment protection rights would depend on how effective they were, but the quality of employment protection in the country of the place of work was irrelevant in considering the substantial connection question (citing Rimer LJ in Dhunna (bailii.org) at para. 40. See also below Technical note: Does overseas law matter?).
- his stay in Bangladesh was always intended to be short-term. The Council’s lawyer argued that four years could not fairly be said to be “short-term”. However, said the Court of Appeal, that had to be seen in the context of an overall contract which envisaged him moving countries from time to time, as he had throughout his career with the Council. It was this aspect that the EAT had principally in mind. It was important to appreciate that the claimant was not someone engaged to work in a particular overseas location.
Green v SIG Trading (bailii.org)
SIG was a company registered in the UK, and a subsidiary of a UK plc. The claimant was married to a Lebanese national and had lived (with his family) in the Middle East for over 15 years. He had no private residence in the UK. He had previously provided consultancy services for SIG through his firm, but in March 2014 was appointed SIG’s Managing Director for the Kingdom of Saudi Arabia (“KSA”). He continued to live in Lebanon, commuting to work in KSA two to four days at a time. On limited occasions he was required to attend the UK for training and for some meetings relating to SIG’s KSA business operations. His contract was expressly stated to be governed by English law and there were references to UK and UK laws throughout the contract. The employment tribunal found that SIG had found it convenient to give him a standard UK contract, amended in some parts. IT, HR and payroll support for the KSA operation was based in the UK. as was the claimant’s line manager and the three employees who reported to him.
The Court of Appeal held the tribunal was entitled to decide that the claimant had insufficient connection with Britain to bring a whistleblowing claim. In particular:
- The employment tribunal had said the claimant was working on an entirely new venture in Saudi Arabia, attracting new business and new contractors there. For that and other reasons the tribunal held there was not a strong connection between the claimant’s employment and Great Britain and its employment law. In the appeal, the claimant’s lawyer argued that he fell within the “posted worker exception” (above) in Serco v Lawson, because it was (his lawyer argued) clear that the English business was the beneficiary of his work. The Court of Appeal said that in Lord Hoffman’s examples in Serco, the connection with Great Britain would typically overcome the territorial pull of the place of work, but his observations were “not a substitute for a careful examination of the facts of the particular case: the developing case-law has shown a number of different factual circumstances that do not fall neatly into Lord Hoffmann’s exceptions”. The actual test propounded by the authorities was the sufficient connection question. The tribunal had carried out the correct comparative exercise, and was entitled to decide there was insufficient connection.
- The employment tribunal had found that the employment contract had standard UK terms because of convenience since there was no standard form document appropriate for Saudi Arabia. The Court of Appeal said the contract’s choice of English law was a relevant factor, but the court “would not accept that it was necessarily wrong for the [employment tribunal] to attach less weight to it because of the circumstances in which it came to be included in the contract. … I can see nothing wrong with treating a specifically-negotiated provision as having greater strength in that connection [ie the degree of connection that the contract has with Great Britain] than the inclusion of a provision which neither of the parties had consciously sought to include and which appears only because of the use of a standard form which can be shown in other respects to be positively inapt… .”
Hottak v Secretary of State for Foreign and Commonwealth Affairs (bailii.org), Court of Appeal, 2016
Locally recruited Afghan interpreters working for British Armed Forces in Afghanistan sought to claim under the Equality Act. The Court of Appeal upheld a decision that they were outside its territoiral scope.
One argument rejected by the Court of Appeal was that the EqA employment provisions should be seen as having a wider territorial reach than unfair dismissal because, being directed at outlawing discrimination, they concerned “matters viewed by this jurisdiction as going to the very essence of man’s humanity to man”. The Court of Appeal said the same test applies to the EqA as to unfair dismissal (para 47).
Applying this unfair dismissal test, the Court of Appeal held that the Divisional Court had been entitled to decide that the Afghan interpreters could not claim under the EqA. It was not enough that they were employed by the British government (citing Lady Hale in Duncombe (No. 2), below). They were not British citizens recruited in Great Britain by a British employer to work in a British enclave or outpost, like two of the claimants in Serco v Lawson, below. At para 54 of its judgment the Court of Appeal listed the many links with Aghanistan. Overall, this case was not materially different from Bryant v Foreign and Commonwealth Office, above which had held that a British national locally engaged to work in the British Embassy in Rome could not claim unfair dismissal, and which Lord Hoffman in Serco v Lawson said was rightly decided.
The Court of Appeal also held that a ‘public functions’ claim under Part 3 EqA was outside the Act’s territorial scope. Furthermore it upheld the Divisional Court’s decision to grant only declaratory relief in respect of the PSED.
Lodge v Dignity, 2015
Lodge v Dignity & Choice in Dying (bailii.org), EAT, 2015
An Australian citizen worked for the charity in London from February 2008, and became Head of Finance. She and her family wanted to return to Melbourne as her mother was unwell. It was agreed she could continue her function as Head of Finance remotely from Australia, using a VPN. She did this from January 2009 until her resignation in June 2013, paying Australian tax. Each year she returned to London for two weeks to assist with the annual audit, and on two other occasions for a day.
The employment tribunal held it could not consider her claims for unfair dismissal and whistleblowing. However the EAT reversed that decision. It held the tribunal did have juridiction.
The EAT pointed to the decision of Financial Times Ltd v Bishop (bailii.org), EAT, 2003 endorsed by Lord Hoffman in Serco v Lawson below (para 38). Mr Bishop was originally a sales executive working for the FT in London, but at the time of his dismissal had been working for three years in San Francisco selling advertising space. Lord Hoffman in Serco said the question was whether Mr Bishop was selling advertising space in San Francisco as a part of the business which the FT conducted in London, or whether he was working for a business which the FT or an associated company conducted in the United States, for example, by selling advertising in the FT American edition. In the latter case there would be no unfair dismissal claim in Britain. Summing up, in para 40, Lord Hoffman in Serco gave as one example of someone who may be able to claim unfair dismissal “the employee posted abroad to work for a business conducted in Britain”.
The EAT said Mrs Lodge in this case did not fall foursquare within the posted employee example, as she herself had chosen to move. However the EAT said (citing Wallis, below) that it was not a matter of falling within precisely defined ‘categories’ set out in Serco by Lord Hoffmann, who had emphasised he was not propounding rules but giving illustrations of the operation of a principle which it was not possible to define with precision.
In the present case all of the work done by the claimant from her computer in Melbourne was for the benefit of the charity’s London operation. The British tribunal had jurisdiction to hear her claims.
Note: This type of situation is likely to become more important with the growth of remote working.
Fuller v United Healthcare Services (bailii.org), EAT, 2014
The claimant was a US citizen employed by a US company which was part of an international group. He accepted an “international rotation assignment”, to last about two years, under which he became managing director of a UK subsidiary focusing on business in the UK, Europe, the Middle East and Africa. His contract stated he was based in the USA. He continued a previous US role. He was in London for about half the time, and when there lived in rented accommodation paid for by his employer. Otherwise he was mostly in the US or United Arab Emirates. He continued to be paid in US dollars. He left his furniture and home effects in his Texas home where he and his partner lived. The contract provided for the employer to pay for his partner to make two trips per year to the UK.
Partly due to budget issues, he was then told his expatriate assignment was being terminated. Following a short period in which he unsuccesfully sought another role within the company, he was dismissed. He claimed for unfair dismissal, sexual orientation discrimination, and whistleblowing.
The employment tribunal held that it did not have jurisdiction to consider his unfair dismissal or other claims. It noted that “the claimant was in the obverse situation from claimants in the leading cases in that he was not ‘working abroad’ and seeking to invoke UK employment legislation; rather he was seeking to invoke UK legislation because he was present in the UK, on business, for much of his time.” Ordinarily working in the UK at the time of his dismissal was the strongest possible indication that Parliament would intend the claimant to fall within UK employment law. However it was not absolutely determinative. In this case: “Overwhelmingly the strongest connection, both in the deliberate intention of both parties to the employment relationship, as contractually expressed, and in the factual outworkings of that contract was to the United States.” The tribunal found that the work carried out was a continuance of his previous work in the US, with a different emphasis.
The Employment Appeal Tribunal (EAT) upheld this decision. The tribunal had decided the claimant had not given up his base in the USA despite carrying out some work in the UK and in other countries. The tribunal was entitled to come to that view. It could not be said in light of those facts that the claimant’s employment was closely related to Great Britain and British employment law. It was necessary, said the EAT, to recognise that the connection requires to be with both Great Britain and British employment law. The tribunal found that the claimant entered into an employment contract which had an overwhelmingly close connection with the USA, so it did not have the required connection with British employment law. Also the reality of the situation was as described in the contract. Further he had been dismissed in the US.
Similarly the Equality Act did not apply, as the test was the same as for unfair dismissal. The EAT also held that EU law (below) was not engaged here; as discussed above the employment relationship was an American relationship.
Contrast Pervez v Macquarie Bank (above) discussed in that case, where the claimant had been seconded from Hong Kong to the UK and was held entitled to bring a claim in Britain. Pervez was “working in London on a settled (and indefinite) basis”.
Clyde & Co v Bates van Winkelhof, 2012
Clyde & Co v Bates van Winkelhof (bailii.org), Court of Appeal, 2012
The claimant was an English qualified solicitor, but had moved to work in Tanzania. When in Tanzania, she was recruited by a law firm, Clyde & Co. This was a limited partnership governed by English law, and she became a member of it (similar to a ‘partner’ in a traditional partnership). She worked principally in Tanzania, but sometimes in the UK. She was subsequently expelled as a member of the partnership, and alleged sex discrimination and pregnancy discrimination under the EqA. (She also claimed under rules protecting whistleblowers. The Court of Appeal held those rules did not apply to her as a member of a limited partnership but the Supreme Court reversed that: see below.)
In deciding whether the EqA applied, the employment tribunal applied the test developed for unfair dismissal (“sufficient connection”, above). It considered whether there were “strong connections with Great Britain such that the Tribunal has jurisdiction to hear the [complaints]”, and decided that there were. The EqA claims could proceed. (As to what factors created sufficient British link in this case, ten of them are listed at para 86 of the Court of Appeal decision.)
The Court of Appeal upheld the employment tribunal’s decision. In effect the tribunal had asked the right question, as set out in the later Supreme Court decision of Ravat v Halliburton (below): namely whether the connection was “sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim.” The Court of Appeal considered that since she worked partly in Great Britain, the tribunal did not have to undertake a comparison to see whether the employment relationship had a stronger connection with Great Britain than with Tanzania. (However if the Court of Appeal was wrong on about the tribunal having framed the question correctly, the tribunal would necessarily have come to the same conclusion had it framed the question correctly.)
If the unfair dismissal test had not been satisfied, the claimant argued (in the alternative) that the scope of the EqA should be extended under EU law, under the Bleuse principle, below. However, the Court of Appeal did not have to consider this point.
(In 2013, the Supreme Court (pdf, supremecourt.uk) refused permission to appeal on the issue of connection with Great Britain “because the application does not raise an arguable point of law, the question being one of fact for the Tribunal.” Though not relevant to the issues discussed here, the case did go to the Supreme Court on whether as a limited partner she was a ‘worker’ so as to have the protection of the whistleblowing legislation. In 2014 the Supreme Court held (bailii.org) that she was indeed a ‘worker’ so the whistleblowing rules applied.)
Simpson v Intralinks, 2012
Simpson v Intralinks (bailii.org), EAT, 2012
This case concerned claims under the Sex Discrimination Act 1975 and Equal Pay Act 1970. The claimant was based in Germany. She worked a lot in Germany and elsewhere on the continent, but she also worked partly in London. The employer company had its registered office in London. The employment contract said that the agreement and any disputes were governed by Germany law, and that Frankfurt courts had exclusive jurisdiction. According to the wording of the Sex Discrimination Act, the Act applied in the present case because her work was partly in the UK. However was this altered by the fact that the contract said it was governed by German law, and did the UK tribunal have jurisdiction at all?
The EAT held that under the terms of the Brussels I Regulation, the UK tribunal had jurisdiction despite the employment contract saying that any disputes must be decided in Frankfurt. In Section 5 of the Regulation, on employment contracts:
- under Article 19 one option given to the employee was to sue where the employer was domiciled, where the company had its registered office, and
- under Article 21 an agreement excluding jurisdiction of a particular country could only be entered into after the dispute had arisen.
As regards what law must be applied by the UK tribunal, the EAT considered this was to be determined according to the Rome Convention. Under Article 6 of this, German law applied: her work was habitually carried out in Germany, and the tribunal had been entitled to find that the contract was not more closely connected with the UK. Even so Article 7(2) of the Rome Convention allowed the UK tribunal to apply mandatory rules of UK law. Accordingly Article 7(2) allowed the tribunal to apply UK sex discrimination and equal pay legislation because these could not be derogated from by agreement.
The result was that the UK employment tribunal was entitled to decide whether there had been a breach of the Sex Discrimination Act and Equality Pay Act, but the tribunal would need to apply German law in deciding whether there was a contract of employment (and in deciding anything else not governed by mandatory UK law). The EAT held that an employment tribunal was entitled to determine issues of German law, which would be seen as a question of fact on which expert evidence could be given.
Note: The Rome Convention has now been replaced (as regards newer contracts) by the Rome I Regulation. Also the Brussels I Regulation was replaced by the Brussels I Recast Regulation, which however no longer applies in Britain after Brexit. See generally above Complications of jurisdiction and choice of law.
Ravat v Halliburton, 2012
Ravat v Halliburton (bailii.org), Supreme Court, 2012
A “commuter” worker was a British citizen living in England and working for a British company. However he did the work in Libya. He was on a “rotational” basis, 28 days in Libya, then 28 days back home, with travel paid by his employer. His work was for the benefit of a German company. Both that company and his employer were subsidaries of Halliburton Inc in the United States.
A feature of his employer’s commuter policy was that while he was working on a foreign assignment the employee’s terms were such as to preserve the benefits, such as pay structure and pensions, for which he would normally be eligible had he been working in his home country (other than purely local ones such as a car allowance). The claimant was remunerated on the normal UK pay and pension structure that applied to the employer’s home-based employees. He was paid in sterling into a UK bank account, and he paid UK income tax and national insurance on the PAYE basis. In 2003 when he started to work in Libya, he had been assured by his manager that he would continue to have the full protection of UK law while he worked abroad.
The Supreme Court held the employment tribunal had been entitled to find that his employment was sufficiently connected with Britain to enable him to claim for unfair dismissal. It reiterated Lady Hale’s comment in Duncombe (No. 2), below that there is no hard and fast rule, and it is a mistake to try and torture the circumstances to make it fit one of the examples given in Serco v Lawson, below, for they are merely examples of the application of the general principle. The Supreme Court sought to explain what the general principle is [at least for someone working wholly abroad, see Clyde & Co, above]:
“27. … [the starting point] is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. The open-ended language of [unfair dismissal legislation] leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified. The case of the peripatetic employee who was based in Great Britain is one example. The expatriate employee, all of whose services were performed abroad but who had nevertheless very close connections with Great Britain because of the nature and circumstances of employment, is another.
28. … It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them.
29. … The question whether, on given facts, a case falls within the scope of [unfair dismissal legislation] is a question of law, but it is also a question of degree. The fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous. … The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.”
Duncombe (No. 2), 2011
Duncombe v Secretary of State for Children, Schools and Families (No. 2) (bailii.org), Supreme Court, 2011
‘European Schools’ operate in EU member states, run by an organisation controlled by member states and the European Commission. Teachers were employed by national governments, so the UK government (the Secretary of State) was the employer of British teachers working in these schools throughout the EU. It therefore employed Mr Duncombe who was a British teacher at a European School in Germany. The other claimant was a British teacher at a European School in England.
The Supreme Court had previously rejected a claim by the teachers under the Fixed-term Employees Regulations (Duncombe (No. 1), below). However in this second decision, the Supreme Court held that Mr Duncombe was entitled to claim unfair dismissal in Britain. This case was not within any of the examples given by Lord Hoffman in Serco, below of where someone working and living overseas may nevertheless claim in Britain. However like Wallis, below this was an exceptional case where the employment had such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it was right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal. This depended on a combination of factors:
- The employer was the UK government, which was the closest connection with Great Britain that any employer can have.
- The teachers were employed under contracts governed by English law; the terms and conditions were either entirely those of English law or a combination of those of English law and the international institutions for which they worked.
- They were employed in international enclaves, having no particular connection with the countries in which they happened to be situated, and governed by international agreements between the participating states. They did not pay local taxes. The teachers were there because of commitments undertaken by the British government (the Supreme Court pointed to similarities here with Wallis).
- It would be anomalous if a teacher who happened to be employed by the British government to work in the European School in England were to enjoy different protection from teachers who happened to be employed to work in the same sort of school in other countries (again the Supreme Court pointed to similarities with Wallis).
Ministry of Defence v Wallis (bailii.org) Court of Appeal, 2011
The Court of Appeal confirmed a decision that the employment tribunal had jurisdiction to hear unfair dismissal claims made by employees working full time abroad, in Belgium and the Netherlands. They were employed by the Ministry of Defence in international schools attached to entities within the structure of NATO, and secured their employment purely because they were spouses of members of the Armed Forces posted abroad. The employment had “such clear, firm, sound connections with Britain or England that it is appropriate that each claimant should have the protection of English unfair dismissal law”. (Note: This conclusion was approved by the Supreme Court in Duncombe (No. 2), above).
The Court of Appeal also considered a claim under the Sex Discrimination Act 1975. Express wording on territorial scope in the Act did not extend to this situation. Even so the court upheld a decision that the Act applied here. The court said that the EU principle of ‘effective judicial protection’ applied. To make the Sex Discrimination Act compatible with EU law, words should be read into the Act to cover the case of a person employed to work wholly at an establishment outside Great Britain, but whose employment has a sufficient connection with Great Britain to entitle her to the protection of employment law in the courts and tribunals in Great Britain. Even if the words could not be read into the Act, the EU law had direct effect as against the government. (para 36-42). [On this aspect of the case, especially after Brexit, see below Wider scope through EU law (Bleuse principle) no longer applicable after Brexit?]
Elias LJ considered in more detail issues of jurisdiction of the tribunal, applicable law and EU law, from para 47 onwards. He pointed out that this was a case in which the British courts had jurisdiction, and in which the law applicable to the relationship under the Rome Conventions was English law. Elias LJ considered that the situation became more complex if – unlike in this case – either the domestic law of non-EU countries may be involved (in which case it may be necessary to determine the geographic reach of the directive itself), or if reliance is placed on EU rights which do not have direct effect.
Serco v Lawson, 2006
Serco v Lawson (bailii.org), House of Lords, 2006
The House of Lords considered whether the following could claim unfair dismissal in Britain:
- a security supervisor, working on Ascension Island, whose employer Serco had a contract to service the RAF base there (Serco v Lawson);
- a “UK-Based Youth Worker” with British Forces Germany Youth Service who worked in various MOD establishments in Germany as part of the “civil component” of British Forces in Germany, treated as UK resident for tax and various other purposes (Botham v Ministry of Defence);
- an aircrew for a Hong Kong airline who was assigned Heathrow as his permanent base, and lived in the UK (Crofts v Veta).
Lord Hoffman gave the judgment of the House of Lords. He said the standard, normal or paradigm case for being able to claim unfair dismissal was the employee who was working in Great Britain.
As regards peripatetic workers such as airline pilots, international management consultants, salesmen and so on, there was no sensible alternative to asking where they are based. The tribunal had held the centre of the aircrew claimant’s operations in this case was quite manifestly London, and the tribunal had been right to find he could claim unfair dismissal.
The other two claimants worked abroad. Lord Hoffman said the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation, he thought that there are some who do so:
- It would be very unlikely that someone working abroad could claim unfair dismissal unless they were working for an employer based in Great Britain. But this is not enough. Something more is necessary.
- “Something more may be provided by the fact that the employee is posted abroad by a British employer for the purposes of a business carried on in Great Britain. He is not working for a business conducted in a foreign country which belongs to British owners or is a branch of a British business, but as representative of a business conducted at home.
- “I have in mind, for example, a foreign correspondent on the staff of a British newspaper, who is posted to Rome or Peking and may remain for years living in Italy or China but remains nevertheless a permanent employee of the newspaper who could be posted to some other country. He would in my opinion fall within the scope of [unfair dismissal].”
- Financial Times Ltd v Bishop (bailii.org), EAT, 2003 illustrated the principle. In that case an FT executive worked in the USA selling advertising space. Lord Hoffman said the question was whether he did so as a part of the business the FT conducted in London, or rather was working for a business it conducted in the USA such as selling advertising in the Financial Times American edition. [Note: Lodge v Dignity & Choice in Dying (above) applied this Financial Times example to an Australian working remotely for a British charity.]
- Another example was an “expatriate employee of a British employer who is operating within what amounts for practical purposes to an extra-territorial British enclave in a foreign country”. This was the position with both the German military base and Ascension Island. The latter case was not so strong, but even so it would be unrealistic to regard the Serco employee on Ascension Island as having taken up employment in a foreign community in the same way as if Serco were providing security services for a hospital in Berlin. Lord Hoffman had no doubt that Bryant v Foreign and Commonwealth Office (above), 2003, was correctly decided; there a British national locally engaged to work in the British Embassy in Rome could not claim unfair dismissal in Britain. “But on Ascension [Island] there was no local community. In practice, as opposed to constitutional theory, the base was a British outpost in the South Atlantic. Although there was a local system of law, the connection between the employment relationship and the United Kingdom were [sic] overwhelmingly stronger.”
- Lord Hoffman said there may be other examples of expatriate employees able to claim for unfair dismissal, but they would need to have equally strong connections with Great Britain and British employment law.
The result in the present cases was that all three could claim unfair dismissal in Britain.
See further above Working abroad.
Wider scope through EU law (Bleuse principle) no longer applicable after Brexit?
Before Brexit the courts sometimes extended the territorial scope of British legislation which implemented EU law, in order to give an effective remedy for EU rights. There are cases where people working in the EU (eg in Austria and Germany) for, say, a company registered in the UK were allowed to claim in Britain even though under the “sufficient connection” test (above) British legislation would not apply. This is known as the Bleuse principle.
The Bleuse principle (if it does still apply) should apply to claims under the employment provisions of the Equality Act as they generally implement EU law.
Even before Brexit, there were some doubts around the Bleuse principle. The one time (so far as I know) that the principle was considered by the Supreme Court, in Duncombe (No. 1), below, Lady Hale said that if the principle had been necessary to decide the case, a reference to the EU Court of Justice would probably have been required, in order to decide territorial aspects of the scope of protection given by EU employment law.
The British courts seem to have limited the Bleuse principle to people doing work within the EU: see cases below. However work within the EU is not necessarily enough, as in Fuller (above) the EAT did not apply the principle to an American expat working about half his time in Britain.
Does the Bleuse principle apply after Brexit?
Legal textbooks disagree on this. The courts will need to decide.
As outlined above, even before Brexit the status of the principle was somewhat uncertain (at Supreme Court level). After Brexit it is no longer possible to refer the issue to the EU Court of Justice, as suggested by Lady Hale in Duncombe (No. 1).
In any event the leading practitioners’ textbook on private international law Dicey, Morris & Collins, The Conflict of Laws, 16ed, 2022 at para 33-319 considers (as I understand it) that the Bleuse principle no longer applies after Brexit. Dicey says that although EU directives remain relevant to the interpretation of the EqA, “they can no longer require the courts to take a different approach to questions of territorial scope in cases involving employment in a member state”.
On the other hand Harvey on industrial relations and employment law (Issue 295, March 2022) at PIII 101.01 evidently disagrees. It says the Bleuse principle is dependent on the EU law principle of effectiveness which continues in UK law under s.6(7) EU (Withdrawal Act) 2018 (Brexit: Effect of EU law when interpreting Equality Act from 2021>’Retained principles’). However Harvey points to the comments by Lady Hale in Duncombe (No. 1) that if it had been necessary to decide the matter the court would have felt constrained to make a reference to the ECJ – which cannot now be done. For clarity a Supreme Court decision would be required.
Discrimination at work: IDS Employment law handbook, November 2022, at para 35.17, sees it as unclear whether the Bleuse principle has survived Brexit, since although the EU (Withdrawal Act) 2018 has preserved the effect of EU law as it was at 31/12/20, “the extent to which domestic law may be modified or disapplied in reliance on general principles of EU law has been significantly curtailed.”
As Harvey says, the British courts – ultimately the Supreme Court – will need to decide the issue (unless relevant UK legislation is amended by, say, the Retained EU Law Bill). My own feeling is that the British courts will want to try to avoid extending territorial coverage of British law (beyond the normal “sufficient connection” test) to cover work done in the EU. It seems odd to cover that when the UK is no longer an EU member, and presumably EU member states (if they apply a similar principle) will not reciprocate by applying their own anti-discrimination legislation to a German employer, for example, just because its employee is working in the UK, now outside the EU. It might be argued that the EU principle of effectiveness still applies in the UK when interpreting EU-derived legislation, but that the intention of s.6 EU (Withdrawal Act) 2018 was it should be limited to the territory of the UK rather than the EU. A possible counter-argument might be that the intention of the Brexit legislation was to continue the existing legal position unless and until changed by Parliament or through regulations.
Cases on Bleuse principle
Bleuse v MBT Transport (bailii.org), Employment Appeal Tribunal (EAT), 2007.
The claimant, a lorry driver, worked mainly in Austria and Germany (never in the UK), and lived in Germany. The individual through whom he was employed lived in Austria. However, his contract of employment was with a company registered in England, owned by that individual. The contract identified English law as the proper law and sought to confer exclusive jurisdiction on the English courts.
The EAT held he could not claim unfair dismissal. There was not a sufficient link with Great Britain under the “sufficient connection” test (above). That the contract was governed by English law did not alter this, because the right to claim unfair dismissal was a statutory right, not a contractual one.
However the EAT held that (assuming he had made his claim in time) the UK tribunal could consider his claim to holiday pay under the Working Time Regulations (WTR). Normally the same reasoning as for unfair dismissal would apply. However the WTR implemented directly effective EU law, so (the EAT held) their scope must be extended to give effect to his directly effective rights under EU law. Otherwise the EU principle of effectiveness would not be satisfied; there would be no effective remedy for a breach of the EU right. The WTR could – and therefore should – be interpreted so as to be compatible with EU law.
The UK tribunal had jurisdiction because the employer company was registered in the UK (bearing in mind the Brussels Regulation). English law applied to the contract itself (bearing in mind the Rome Convention).
Ministry of Defence v Wallis (above), Court of Appeal, 2011 (8th March)
The claimants were employed by the Ministry Defence in schools attached to NATO entities in Belgium and the Netherlands. They were held (above) to meet the “sufficient connection” test, and so could claim for unfair dismissal. However, the Sex Discrimination Act 1975 contained express wording on territorial scope, which did not allow them to claim for sex discrimination. The Court of Appeal held that they could nevertheless claim under the Sex Discrimination Act, to comply with the EU principle of ‘effective judicial protection’.
Note: However this decision was a few weeks before Lady Hale’s comments in Duncombe (No. 1) below suggesting that a reference to the EU Court of Justice would probably be required
Duncombe (No. 1), 2011
Duncombe v Secretary of State for Children, Schools and Families (No. 1) (bailii.org), Supreme Court, 2011 (30th March)
‘European Schools’ operate in EU member states, run by an organisation controlled by member states and the European Commission. Teachers were employed by national governments, so the UK government (the Secretary of State) was the employer of British teachers working in these schools throughout the EU. It therefore employed Mr Duncombe who was a British teacher at a European School in Germany. The other claimant was a British teacher at a European School in England.
The teachers claimed under the (British) Fixed-term Employees Regulations, which implemented an EU directive. The Supreme Court held that properly understood, the use of a fixed-term contract could be justified here, so their claims failed in any event.
The Supreme Court therefore did not need to consider whether Mr Duncombe (employed by the UK government but working in Germany) could bring a a claim in Britain in respect of the regulations. However Lady Hale – with whom Lord Rodgers and on this Lord Mance agreed – did make some comments:
- Lady Hale raised (but did not answer) the question whether a person employed to work in eg China would be able to claim the benefit of all domestic law emanating from the EU. She suggested it may not be enough simply to provide that the contract is governed by, say, English law (§31). This was not relevant in the present case though as both the employer and the work were within the EU (§32).
- Having discussed issues of two people doing exactly the same work enjoying very different protection depending on where their employers were (§32), Lady Hale would be inclined to agree that Mr Duncombe and other teachers employed by the Secretary of State in European schools abroad were covered by the Fixed-term Regulations. “But the intended scope of the protection given by the Directive, and others like it, is a question of European Union law to which a uniform answer should be given throughout the Union. … Had it been necessary to answer the question, therefore, it would probably be necessary to refer it to the European Court of Justice”. (§33)
- If the answer to that simple question were “yes” it would then be necessary to consider the mechanisms appropriate to achieve that end. Lady Hale thought it “unlikely that, if the protection of European employment law is to be extended to workers wherever they are working in the area covered by European law, that protection should depend upon whether or not it gives rise to directly effective rights against organs of the state. A way would have to be found of extending it to private as well as public employment.” (§34)
Note: See also Duncombe (No. 2) above where some months later the Supreme Court held that Mr Duncombe had “sufficient connection” with Britain to claim unfair dismissal. Presumably this “sufficient connection” would also bring him within the scope of the Fixed-term Employees Regulations considered in Duncombe (No. 1), albeit his claim under them failed anyway.
Fuller v United Healthcare Services (above), EAT, 2014
The claimant was an American employed by an American company, but working about half his time in London as managing director of a UK subsidiary, On the facts, it was held that EU law was not engaged here. The employment relationship was an American one.
Hasan v Shell, 2014
Hasan v Shell (gov.uk), EAT, 2014
The claimant was a British person working on a Singapore-flagged ship outside Great Britain. The ships and hovercraft regulations (above Equality Act: work on ships and hovercraft) did not bring him within the EqA. The EAT held that nor did the Bleuse principle, because his work was not within the European Union.
Note: Equality Act: work on ships and hovercraft, above also deals with a 2020 case on those regulations, Walker v Wallem Shipmanagement.
Wittenberg v Sunset Personnel, 2017
Wittenberg v Sunset Personnel (bailii.org), EAT, 2017
The claimant was a German national based in Germany, working for a company based in Scotland which was part of a United States group. He was chief engineer on a ship working (offshore) mainly in Nigeria, never in UK waters. His original contact (with a company that no longer existed) seems to have said UK law applied. One of his claims was under the Equality Act.
The EAT held that under the Work on Ships and Hovercraft) Regulations 2011, above, he had no EqA claim as the ship on which he worked was not registered at a port in Great Britain.
As regards whether the Bleuse principle entitled him to claim under the EqA, the EAT held the employment tribunal had been entitled to decide he did not have sufficient connection with the EU. There were EU connections through his employer and residence, but none of his work took place in the EU, and there were no peculiarities of his work which could lead to it being connected to the EU.
Technical note: Does overseas law matter in deciding connection?
What if someone working wholly abroad for a British employer has no claim under local law, or perhaps a much more limited claim?
In Hottak, above Afghan interpreters locally recruited there by British Armed Forces were held unable to claim in Britain. The Court of Appeal accepted that any employees engaged locally abroad by the UK Government would likely be met with a plea of state immunity if they sought to claim in local courts, such as in Afghan courts. However, said the Court of Appeal, this was not a factor which, without more, could bring their employment contracts within the exceptional type of case that would enable them to claim unfair dismissal in Britain.
The courts have also said that in deciding whether the claimant has a stronger connection with British employment law than with any other system of law, it is not relevant to consider whether British employment protection is more or less favourable than local laws: Rimer LJ at para 40 in Dhunna (bailii.org) where the claimant in Dubai was held not to have sufficient connection with Britain. In British Council v Jeffery, above the Court of Appeal found that the claimant (working in Bangladesh) did have sufficient connection with Britain, and again it was not relevant to consider the effectiveness of local employment law where he was working – so it would not matter if Bangladesh law gave him perfectly good anti-discrimination protection, for example.
It may be however that if the overseas legal system completely excludes access to the claimant – for example if it does not allow claims by expatriates – this will at least help towards a conclusion that there is sufficient connection with Britain and (particularly) British employment law. Cf Harvey on industrial relations and employment law (Issue 295, March 2022) at PIII 57.04 discussing Bamieh v EULEX Kosovo (bailii.org), EAT, 2018, and the court in Hottak said only that state immunity under local law would not “without more” be enough to justify a claim in Britain.