Mr J Singh v Foreign, Commonwealth and Development Office: 2206619/2022
EMPLOYMENT TRIBUNALS
Case No 2206619/2022
Between
Mr J SinghClaimantForeign, Commonwealth and Development OfficeRespondent
Before
Employment Judge A.M.S. GreenMr J Chegwidden - Counsel for respondentDate 2 May 2023
JUDGMENT
[1]The Tribunal does not jurisdiction to hear the claims. _____________________________ Employment Judge A.M.S. Green Date 2 May 2023[2]JUDGMENT SENT TO THE PARTIES ON 02/05/2023 FOR THE TRIBUNAL OFFICE Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.[3]Case No: 2206619/2022 10.8 Reasons – rule 62(3) March 2017 EMPLOYMENT TRIBUNALS Claimant: Mr J Singh Respondent: Foreign, Commonwealth & Development Office Heard at: London Central (CVP) On: 2 May 2023 Before:
REASONS
[1]For ease of reference I refer to the claimant as Mr Singh and the respondent as the FCO.[2]Mr Singh was employed by the FCO in the role of Fleet and Security Manager at the British High Commission in Fiji. His employment started on 8 May 2018 and continued until he was dismisse d with effect from 17 June 2022 on the grounds of gross misconduct. After a period of early conciliation which started on 8 July 2022 and ended on 17 August 2022, Mr Singh presented a complaint to the Tribunal on 4 September 2022 . He claims unfair dismissal, refusal of union representation during his disciplinary proceedings, disability discrimination and race discrimination.[3]The FCO denies liability. On 12 October 2022, the FCO applied for an public preliminary hearing to determine whether the Tribu nal had territorial jurisdiction to hear Mr Singh’s claims [27]. The application proceeds on the premise that the territorial scope of the Employment Rights 1996 (“ERA”) ERA”), the Case No: 2206619/2022 10.8 Reasons – rule 62(3) March 2017 Employment Relations Act 1999 (“ERA 1999”) and the Equality Act 2010 (“EQA”) does not extend beyond Great Britain.[4]At the hearing, we worked from a digital bundle. Unfortunately, this had not been sent to me and we had to delay the start of the hearing to facilitate transmission of the bundle. I then took some time to read the bundle, the representatives’ skeleton arguments and the witness statements provided. We agreed that it would not be necessary for the witnesses to give oral evidence as the facts concerning Mr Singh’s employment were agreed. The representatives made closing oral submissions. I then adjourned to deliberate and prepare my decision.
Findings of fact
[5]Mr Singh is a dual Fijian/British national. He acquired his British citizenship through naturalisation. He served in the British army and is now a veteran. He lives near Suva, which is the capital of Fiji.[6]The FCO advertised a vacancy for the position of Driver/Messenger [84]. The advertisement stated, amongst other things that “Staff recruited locally by the High commission is subject to Terms and Conditions of Service according to local Fiji employment law.”[7]Recruitment of country based staff is a process led by the relevant British Embassy, High Commission, Mission, or Consulate. The recruitment for Mr Singh’s position was led by and conducted from the British High Commission in Fiji. The Regional Hub at the British Embassy in Manila provided the advertisement, shortlisting and support services to the British High Commission for recruiting to the position. Once the vacancy was closed, the FCO’s HR Regional Hub provided the British High Commission the shortlist of candidates [92-93]. The candidates were interviewed in person by the hiring manager with two panellists.[8]Mr Singh successfully applied for the position and was offered the job.[9]The FCO employed Mr Singh as a member of the locally based “country staff” to work for the British High Commission in Suva. The FCO sent him his letter of appointment dated 8 May 2018 [96]. In her witness statement Ms Ashley Watson states at paragraph 5 that country based staff are employed on a local contract at the British Embassy/High Commission in the country where they work. In paragraph 6, she states that they are not civil servants or part of the Diplomatic Service. Country based staff are recruited in each country in accordance with the applicable laws of that country, and are bound by the terms and conditions set out in the staff handbooks produced by the respective Embassy/High Commission. I have no reason to doubt that.[10]Mr Singh’s employment was subject to the terms and conditions of service for FCO local staff in Fiji [42]. This provided that his employment contract was governed by Fijian law and subject to the jurisdiction of the courts of Fiji [45]. Mr Singh was paid in Fijian dollars into his local bank account. Copies of his Case No: 2206619/2022 10.8 Reasons – rule 62(3) March 2017 payslips were produced payslips were produced toto the Tribunalthe Tribunal [124[124--126]. Fijian income tax126]. Fijian income tax was liable was liable to be deducted from his salary. to be deducted from his salary. However his income did not exceed the However his income did not exceed the threshold for threshold for paying income tapaying income tax. x. His payslips show that his salary was subject His payslips show that his salary was subject contributions to the Fiji National Providentcontributions to the Fiji National Provident Fund which is a compulsory Fund which is a compulsory pension scheme for local employees [124pension scheme for local employees [124--126].126].[11]Mr Singh’s employment was conducted in Fiji. Mr Singh’s employment was conducted in Fiji. It was It was not not limited to the limited to the pphysical confines of the British Diplomatic Mission. hysical confines of the British Diplomatic Mission. His duties concerned the His duties concerned the activities of the British High Commission and he was line managed from activities of the British High Commission and he was line managed from there.there. Applicable law
Applicable law
[12]Territorial jurisdiction concerns the reach of British legislation aTerritorial jurisdiction concerns the reach of British legislation and the span of nd the span of tthe authority given by Parliament to British courts and tribunals. In the he authority given by Parliament to British courts and tribunals. In the employment context it is obvious that an employee living in Great Britain and employment context it is obvious that an employee living in Great Britain and working in Great Britain for a company incorporated in Great Britain will be working in Great Britain for a company incorporated in Great Britain will be entitled to entitled to bring a claim bebring a claim before a British employment tribunal in reliance on fore a British employment tribunal in reliance on employment rights provided by British legislation. Equally obvious, an employment rights provided by British legislation. Equally obvious, an employee living and working overseas for an overseas employer and having employee living and working overseas for an overseas employer and having no connection with Great Britain will not be eno connection with Great Britain will not be entitled to do sontitled to do so: Parliament does : Parliament does not legislate for the world. Other scenarios will be less clear: what of, for not legislate for the world. Other scenarios will be less clear: what of, for example, a peripatetic employee based in Great Britain but regularly working example, a peripatetic employee based in Great Britain but regularly working abroad, or an employee working and living abroad but in a British eabroad, or an employee working and living abroad but in a British enclave nclave such as asuch as a military basemilitary base?? The answer to whether such workers can rely on The answer to whether such workers can rely on employment rights provided by British legislation will depend on an analysis of employment rights provided by British legislation will depend on an analysis of the territorial jurisdiction provisions of the particular statutes under which the the territorial jurisdiction provisions of the particular statutes under which the putative claimputative claim is brought, andis brought, and the interpretation the appellate courts have the interpretation the appellate courts have given to those provisions in previous cases.given to those provisions in previous cases.[13]In the combined appeals in In the combined appeals in Lawson v Serco Ltd, Botham v Ministry of Lawson v Serco Ltd, Botham v Ministry of Defence, and Crofts v Veta Ltd [2006] UKHL 3Defence, and Crofts v Veta Ltd [2006] UKHL 3, the House of Lords , the House of Lords considered for considered for the first time wthe first time what limits apply to the territorial scope of hat limits apply to the territorial scope of employment legislation which contains no express limitations on the reach of employment legislation which contains no express limitations on the reach of an employment tribunal's jurisdiction. In an employment tribunal's jurisdiction. In LawsonLawson, Lord Hoffmann (who gave , Lord Hoffmann (who gave the only reasoned speech) noted that the rigthe only reasoned speech) noted that the right to pursue a cht to pursue a claim for unfair laim for unfair dismissal before a British employment tribunal necessarily does not have dismissal before a British employment tribunal necessarily does not have worldwide effect: there are implied territorial limitations to which the courts worldwide effect: there are implied territorial limitations to which the courts must give effect. Lord Hoffmann's speech in must give effect. Lord Hoffmann's speech in LawsonLawson opined that 'There iopined that 'There is no s no reason why reason why all the various rights included in the ERA 1996 should have the all the various rights included in the ERA 1996 should have the same territorial scope' (para 14). This view has not subsequently been same territorial scope' (para 14). This view has not subsequently been followed and it has become established that the principles regarding the followed and it has become established that the principles regarding the implied limits to the territoriaimplied limits to the territoriality of unfair dlity of unfair dismissal apply to all provisions ismissal apply to all provisions within ERA . This has been held to include whistleblowing detriment and within ERA . This has been held to include whistleblowing detriment and automatically unfair dismissal under automatically unfair dismissal under ERA ERA ss 47B and 103A (see ss 47B and 103A (see Green v SIG Green v SIG Trading Ltd [2018] EWCA Civ 2253Trading Ltd [2018] EWCA Civ 2253 and and Smania v Smania v Standard Chartered Standard Chartered Bank [2015] Bank [2015] IRLR 271IRLR 271).).[14]The same The same Lawson Lawson principles also apply to other employment statutes which principles also apply to other employment statutes which are mute on their span of territorial jurisdiction and therefore rely on implied are mute on their span of territorial jurisdiction and therefore rely on implied Case No: 2206619/2022 10.8 Reasons – rule 62(3) March 2017 restrictions. In relation to restrictions. In relation to EQAEQA this was confirmed by the this was confirmed by the Court of Appeal in Court of Appeal in R R (on the ap(on the application of Hottak) v Secretary of State for Foreign and plication of Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438Commonwealth Affairs [2016] EWCA Civ 438. In that case, the Court of . In that case, the Court of Appeal rejected an argument advanced by the claimants that discrimination Appeal rejected an argument advanced by the claimants that discrimination claims under the claims under the EQAEQA shshould be regarded as having a wiould be regarded as having a wider territorial reach der territorial reach than unfair dismissal claims. Sir Colin Rimer stated that if Parliament had than unfair dismissal claims. Sir Colin Rimer stated that if Parliament had intended the discrimination provisions in the intended the discrimination provisions in the EQAEQA to operate on a worldto operate on a world--wide wide basis, it would have said so, and there were no grbasis, it would have said so, and there were no grounds for implying such an ounds for implying such an inteintention (see para 47). Other statutes which mirror the ERA and ntion (see para 47). Other statutes which mirror the ERA and EQA EQA in in relying on implied territorial limitations includerelying on implied territorial limitations include the right to be accompanied to the right to be accompanied to a grievance or disciplinary meeting and associated provisions in ERA a grievance or disciplinary meeting and associated provisions in ERA 19991999 ss ss 1010––13 (see 13 (see CreditSights LtdCreditSights Ltd v Dhunna [2014] EWCA Civ 1238v Dhunna [2014] EWCA Civ 1238))..[15]An employee who both lives and works abroad but wishes to bring a claim An employee who both lives and works abroad but wishes to bring a claim before a British employment tribunal faces a high hurdle to establish territorial before a British employment tribunal faces a high hurdle to establish territorial jurisdiction. In jurisdiction. In Ravat v Halliburton Manufacturing and Services Ltd Ravat v Halliburton Manufacturing and Services Ltd [2012] [2012] UKSC 1, [2012] IRLR 315UKSC 1, [2012] IRLR 315 LorLord Hope (with whose judgment Lady Hale, Lord d Hope (with whose judgment Lady Hale, Lord Brown, Lord Mance and Lord Kerr agreed) described such an employee as a Brown, Lord Mance and Lord Kerr agreed) described such an employee as a 'true expatriate' (at [28]) and held that for true expatriates there must be 'an 'true expatriate' (at [28]) and held that for true expatriates there must be 'an especially strong connectespecially strong connection with Great Britain and Britishion with Great Britain and British employment law employment law before an exception can be made for them' (at [28]). The starting point is for before an exception can be made for them' (at [28]). The starting point is for such an employee to show that his or her employment relationship has a such an employee to show that his or her employment relationship has a stronger connection with Great Britain than with the forstronger connection with Great Britain than with the foreign country where the eign country where the employee woemployee works (para 27). This comparative exercise was described by Elias rks (para 27). This comparative exercise was described by Elias LJ in LJ in Bates van Winkelhof v Clyde & Co LLP [2012] EWCA Civ 1207Bates van Winkelhof v Clyde & Co LLP [2012] EWCA Civ 1207: 'In : 'In those circumstances it is necessary to identify factors which are sufficiently those circumstances it is necessary to identify factors which are sufficiently powerful tpowerful to displace the territorial pull ofo displace the territorial pull of the place of work, and some the place of work, and some comparison and evaluation of the connections between the two systems will comparison and evaluation of the connections between the two systems will typically be required to demonstrate why the displacing factors set up a typically be required to demonstrate why the displacing factors set up a sufficiently strong countersufficiently strong counter--force'.force'.[16]The formuThe formulation adopted by the Supreme Courlation adopted by the Supreme Court in t in Duncombe v Secretary of Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] UKSC 36State for Children, Schools and Families (No 2) [2011] UKSC 36, was , was whether the true expatriate 'has such an overwhelmingly closer connection whether the true expatriate 'has such an overwhelmingly closer connection with Britain and with British employment law than wwith Britain and with British employment law than with any other system of law ith any other system of law that ithat it is right to conclude that Parliament must have intended that the t is right to conclude that Parliament must have intended that the employees should enjoy protection' (per Lady Hale JSC at [16]). It is therefore employees should enjoy protection' (per Lady Hale JSC at [16]). It is therefore not enough for the claimant to show a closer connection with Britain and not enough for the claimant to show a closer connection with Britain and BrBritish employment law than with theitish employment law than with the country where they perform their work country where they perform their work and that country's legal system. The connection must be 'overwhelmingly and that country's legal system. The connection must be 'overwhelmingly closer'. That is not a common threshold in employment law and indicates just closer'. That is not a common threshold in employment law and indicates just how strong an expatriate's case wihow strong an expatriate's case will have to be to establish that thll have to be to establish that the UK e UK tribunals have territorial jurisdiction. Although the 'overwhelmingly closer' tribunals have territorial jurisdiction. Although the 'overwhelmingly closer' dictum was not explicitly referred to in dictum was not explicitly referred to in Ravat,Ravat, the comparative test described the comparative test described in Lord Hope's judgment in the latter case (and with which Lin Lord Hope's judgment in the latter case (and with which Lady Hale, who ady Hale, who also sat in also sat in RavatRavat, c, concurred) is consonant with the way in which Lady Hale oncurred) is consonant with the way in which Lady Hale described the test in described the test in DuncombeDuncombe..[17]IIn the case of n the case of Rajabov v Foreign and Commonwealth Office [2022] EAT Rajabov v Foreign and Commonwealth Office [2022] EAT 112 (19 August 2022, unreported) 112 (19 August 2022, unreported) the court addressed head on the the court addressed head on the Case No: 2206619/2022 10.8 Reasons – rule 62(3) March 2017 r relevance of a situation in which the respondent will or may have diplomatic or elevance of a situation in which the respondent will or may have diplomatic or state immunity in the courts of the country in which the employee lived and state immunity in the courts of the country in which the employee lived and worked such that it would or might defeat any employment law claim bworked such that it would or might defeat any employment law claim brought rought in that jurisdiction. The in that jurisdiction. The EAT in EAT in Rajabov Rajabov held that this issue was relevant but held that this issue was relevant but 'not a factor which intrinsically discloses a closer connection with Great 'not a factor which intrinsically discloses a closer connection with Great Britain' and 'not a matter of overriding significance which trumps other factors Britain' and 'not a matter of overriding significance which trumps other factors tending againstending against jurisdiction'. The EAT noted tht jurisdiction'. The EAT noted that the same decision had been at the same decision had been reached by other constitutions of the EAT in reached by other constitutions of the EAT in Bryant v Foreign and Bryant v Foreign and Commonwealth Office [2003] All ER (D) 104 (May) (10 March 2003, Commonwealth Office [2003] All ER (D) 104 (May) (10 March 2003, unreported)unreported) (which had been described as correctly decided by L(which had been described as correctly decided by Lord ord Hoffmann in Hoffmann in LawsonLawson) and also ) and also in in Hamam v British Embassy in Cairo Hamam v British Embassy in Cairo [2020] IRLR 574[2020] IRLR 574. . In In RajabovRajabov itself, the woulditself, the would--be claimant had been be claimant had been dismissed on grounds of redundancy from his post in Tajikistan. The tribunal dismissed on grounds of redundancy from his post in Tajikistan. The tribunal rejected the assertion of territorial jurisrejected the assertion of territorial jurisdiction, noting that the governindiction, noting that the governing law of g law of the contract was that of Tajikistan, the claimant's residence was in Tajikistan the contract was that of Tajikistan, the claimant's residence was in Tajikistan and he had been locally recruited and was taxed and made social security and he had been locally recruited and was taxed and made social security contributions there. Whilst accepting that the employer had ccontributions there. Whilst accepting that the employer had connections with onnections with the UK governmentthe UK government and that on the claimant's caseand that on the claimant's case,, he had been told that UK he had been told that UK whistleblowing laws would protect him if he raised concerns about financial whistleblowing laws would protect him if he raised concerns about financial wrongdoing, the tribunal held that those points did not outweigh the other wrongdoing, the tribunal held that those points did not outweigh the other factors whichfactors which showed a stronger connection witshowed a stronger connection with Tajikistan than Great Britain. h Tajikistan than Great Britain. The tribunal had also The tribunal had also consideredconsidered, but given little weight to, the fact that when , but given little weight to, the fact that when a colleague of the claimant had pursued a claim against the FCO in Tajikistan, a colleague of the claimant had pursued a claim against the FCO in Tajikistan, the FCO had successfulthe FCO had successfully relied upon a claim of diplomatic immuly relied upon a claim of diplomatic immunity. As nity. As stated above, the EAT declined to interfere with the reasoning or decision of stated above, the EAT declined to interfere with the reasoning or decision of the tribunal and dismissed the appeal.the tribunal and dismissed the appeal.[18]Taking account of the case law, and when considering the connection with Taking account of the case law, and when considering the connection with both Britain anboth Britain and with British employment law, factors red with British employment law, factors relevant to the levant to the comparative exercise will include: comparative exercise will include:a. the amount of time, if any, the employee spends living and/or working the amount of time, if any, the employee spends living and/or working in Great Britain versus the foreign country; in Great Britain versus the foreign country;b. the employee's place of domicile and residence the employee's place of domicile and residence status as well as the status as well as the nationality and citnationality and citizenship of the employee; izenship of the employee;c. where and why the employee was recruited; where and why the employee was recruited;d. how long the employee has been and is likely to be an expatriate and how long the employee has been and is likely to be an expatriate and what the situation was before and after this status; what the situation was before and after this status;e. in which country thin which country the employee's salary, pension and benefitse employee's salary, pension and benefits are paid are paid and in which currency; and in which currency;f. in which country the employee pays tax; in which country the employee pays tax;g. the employee's line management structure and administrative support the employee's line management structure and administrative support and where those things are based; and where those things are based; Case No: 2206619/2022 10.8 Reasons – rule 62(3) March 2017h. the law of the contract, why it wathe law of the contract, why it was chosen and whether the employee s chosen and whether the employee had anyhad any influence over its choice; influence over its choice;i. any other representations that were made by the employer about the any other representations that were made by the employer about the applicability and protection of British employment law available to the applicability and protection of British employment law available to the employee; employee;j. the identity of the employer and the extent of its connection with Great the identity of the employer and the extent of its connection with Great BrBritain; and itain; andk. whether the employer will or may have diplomatic or state immunity in whether the employer will or may have diplomatic or state immunity in the courts of the country in which the employee performs their work. the courts of the country in which the employee performs their work.[19]A case in which the comparaA case in which the comparative approach led to a conclusion that there was tive approach led to a conclusion that there was no jurisdiction over the cno jurisdiction over the claim was laim was R (on the application of Hottak) v R (on the application of Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438Civ 438. . There, two Afghan nationals, who had been recruited by the British There, two Afghan nationals, who had been recruited by the British Government to serve as interpreters with the British military in AfgGovernment to serve as interpreters with the British military in Afghanistan, hanistan, were held not to be entitled to bring discrimination claims (on grounds of were held not to be entitled to bring discrimination claims (on grounds of nationality) in Great Britain under nationality) in Great Britain under the the EQAEQA as they did not have stronger as they did not have stronger connections with Great Britain and British employment law than with connections with Great Britain and British employment law than with Afghanistan and Afghan law. TAfghanistan and Afghan law. The Court of Appeal concluded that the only he Court of Appeal concluded that the only connection that the claimants had with Great Britain was the identity of theirconnection that the claimants had with Great Britain was the identity of their employer, the UK Government. They were not expatriate or peripatetic employer, the UK Government. They were not expatriate or peripatetic workers; they were not British citizens, but Afghan nationals; thworkers; they were not British citizens, but Afghan nationals; they lived, were ey lived, were recruited, and worked exclusively in Afghanistan; their employment contracts recruited, and worked exclusively in Afghanistan; their employment contracts were governed by Afghan law; were governed by Afghan law; and they did not pay UK tax. The British and they did not pay UK tax. The British tribunals, therefore, had no jurisdiction to hear their claims. The argument of tribunals, therefore, had no jurisdiction to hear their claims. The argument of the claimants the claimants that state immunity precluded them from suing the British that state immunity precluded them from suing the British government in Afghanistan, and therefore the connection with Brgovernment in Afghanistan, and therefore the connection with British law was itish law was closer than the connection with Afghan law, was also unsuccessful.closer than the connection with Afghan law, was also unsuccessful.[20]Another example that Lord Hoffmann gave in Another example that Lord Hoffmann gave in LawsonLawson waswas of an expatriate of an expatriate employee who would be entitled to bring a claim of unfair dismissal before a employee who would be entitled to bring a claim of unfair dismissal before a British employment tribunaBritish employment tribunal is that of an employee of a British employer who l is that of an employee of a British employer who is operating within what amounts for practical purposes to an extrais operating within what amounts for practical purposes to an extra--territorial territorial BritBritish enclave in a foreign country. In the ish enclave in a foreign country. In the LawsonLawson case itself case itself a British a British company employed the employeecompany employed the employee to work as a sto work as a security supervisor on ecurity supervisor on Ascension Island, a dependency of a British overseas territory with no local Ascension Island, a dependency of a British overseas territory with no local population, where the company had a contracpopulation, where the company had a contract to service the RAF base. Lord t to service the RAF base. Lord Hoffmann held that 'in practice, as opposed to constitutional theory, the base Hoffmann held that 'in practice, as opposed to constitutional theory, the base waswas a British outpost in the South Atlantic. Although there was a local system a British outpost in the South Atlantic. Although there was a local system of law, the connection between the employment relationship and theof law, the connection between the employment relationship and the United United Kingdom was overwhelmingly stronger' (para 39). Lord Hoffmann contrasted Kingdom was overwhelmingly stronger' (para 39). Lord Hoffmann contrasted the case with the case with BryantBryant which he helwhich he held had correctly decided that ERA s 94 did d had correctly decided that ERA s 94 did not apply to a British national locally engaged to work in the British Embassy not apply to a British national locally engaged to work in the British Embassy in Rome: one distinguin Rome: one distinguishing feature between ishing feature between BryantBryant and and LawsonLawson was that was that the workplace of Mr Lawson had no local community and, presumablthe workplace of Mr Lawson had no local community and, presumably, none y, none of the structures of a competing jurisdiction that were present in Rome.of the structures of a competing jurisdiction that were present in Rome. Case No: 2206619/2022 10.8 Reasons – rule 62(3) March 2017 Discussion and conclusions
Discussion and conclusions
[21]Mr Singh’s employment with the FMr Singh’s employment with the FCCO did not demonstrate O did not demonstrate an overwhelmingly an overwhelmingly closer connection with Britain and with British employment law than with closer connection with Britain and with British employment law than with FijiFiji and the laws of that countryand the laws of that country.. I I say thissay this for the following reasonsfor the following reasons::a. Mr Singh spent all of his time living and working in FijiMr Singh spent all of his time living and working in Fiji when he wawhen he was s employed by the FCOemployed by the FCO. He was not a peripatetic employee. He was not a peripatetic employee going to and going to and from Britainfrom Britain; ;b. Mr SinghMr Singh’s’s place of domicileplace of domicile and residence status and residence status is Fiji. is Fiji. I acknowledge I acknowledge that hthat he is a dual British/Fijian nationale is a dual British/Fijian national but tbut the fact of his he fact of his British British citizenship does not of itscitizenship does not of itself support elf support his claimhis claimss should be heard by the should be heard by the Tribunal.Tribunal.c. Mr Singh was recruited locally in Fiji to provide his service as Mr Singh was recruited locally in Fiji to provide his service as -- toto the the British High Commission in FijiBritish High Commission in Fiji and nowhere elseand nowhere else..d. Mr Singh was not an ex patriotMr Singh was not an ex patriot. . He was a localHe was a local hire.hire.e. Mr Singh was paid hMr Singh was paid his salary in Fijian dollarsis salary in Fijian dollars which was paid into his which was paid into his bankbank account in Fiji. His pension benefits were account in Fiji. His pension benefits were also also paid locallypaid locally..f. If Mr Singh’s income had exceeded the threshold above which If Mr Singh’s income had exceeded the threshold above which in which in which he would be liable to be taxed, tax would have been levied in Fijihe would be liable to be taxed, tax would have been levied in Fiji by the by the Fijian tax authoritiesFijian tax authorities..g. Mr Singh was managed bMr Singh was managed by locally based managersy locally based managers..h. Mr Singh’s Mr Singh’s contractcontract of employment was governed by the laws of Fijiof employment was governed by the laws of Fiji. . It It was chosen because was chosen because of where he was required to workof where he was required to work which is which is entirely logical and to be expected.entirely logical and to be expected. OnOn the evidence, the evidence, I cannot say I cannot say whether he had any influence over the choice of lawwhether he had any influence over the choice of law. . I suspect not I suspect not given his given his junior positionjunior position but but that that is only speculation.is only speculation.i. The advertisement for Mr Singh’s rolThe advertisement for Mr Singh’s rolee clearly stated clearly stated his employment his employment would be governed by the laws of Fijwould be governed by the laws of Fijii. . There was There was nothing to suggest nothing to suggest that he could claim that that he could claim that there was any representation there was any representation by the FCO by the FCO that that he would benefit from any of the laws relating to any he would benefit from any of the laws relating to any part part of of Great Great Britain (e.g. English law or Scots Law).Britain (e.g. English law or Scots Law).j. The FCO is a department of the British StateThe FCO is a department of the British State. . It It obviously obviously has a strong has a strong connection to Great Britainconnection to Great Britain but but tthhatat in itself does not tip the balance in in itself does not tip the balance in favour of the Tribunal having jurisdiction to hear these claims.favour of the Tribunal having jurisdiction to hear these claims. Many of Many of the cases referred to above involve the same respondent on similar the cases referred to above involve the same respondent on similar facts and canfacts and cannot bnot be distinguished and not followed in Mr Singh’s case.e distinguished and not followed in Mr Singh’s case.k. I presume that the FCOI presume that the FCO will or may have diplomatic or state immunity will or may have diplomatic or state immunity in the courts of in the courts of FijiFiji where Mr Singhwhere Mr Singh performperformeded hishis workwork. . In itself, that In itself, that Case No: 2206619/2022 10.8 Reasons – rule 62(3) March 2017 does does NOT NOT persuade me that thepersuade me that the Tribunal has jurisdictionTribunal has jurisdiction to to hearhear these these claims.claims.[22]For these reasons, the Tribunal does not have jurisdiction to hear Mr Singh’s For these reasons, the Tribunal does not have jurisdiction to hear Mr Singh’s claims. claims.[23]Finally, Finally, I understandI understand from Mr McMullen from Mr McMullen that Mr Singh had previously that Mr Singh had previously attempted to assert his rightsattempted to assert his rights before the courts in Fiji but had been prevbefore the courts in Fiji but had been preventeented d from doing so. from doing so. He told me that the localHe told me that the local courts courts had had not accepted jurisdictionnot accepted jurisdiction. . Consequently, hConsequently, he had gone to the Tribunal essentially seeking a remedy of e had gone to the Tribunal essentially seeking a remedy of last resort. Whilst Ilast resort. Whilst I have sympathy for his predicamehave sympathy for his predicament, I have not seen any nt, I have not seen any evidence of a court evidence of a court ordeorder or similar document issued by the courts of Fiji r or similar document issued by the courts of Fiji declining to hear his claim.declining to hear his claim.