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,
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
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.
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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