“a. promote cultural relationships and the understanding of different cultures between peoples of the UK and other countries; b. promote a wider knowledge of the UK; c. develop a wider knowledge of the English language; d. encourage cultural, scientific, technological and other educational co-operation between the UK and other countries.”
“34. As a general rule the Civil Service Pension Scheme is available only to persons in employment in the Civil Service of the State: seesection 1(4)(a) of the Superannuation Act 1992 . But the Scheme can also be made available to persons who are in employment or offices of a kind listed in Schedule 1 to the Act: see section 1(4)(b). The British Council was added to Schedule 1 bysection 1 of the British Council and Commonwealth Institute Superannuation Act 1986 . Schedule 1 lists major national museums and galleries followed by a large number of institutions which are in a broad sense public or governmental or both. 35. A document produced by the Respondent and provided to me by counsel dated 2009 indicates that 'most British Council UK-appointed staff' are members of the Civil Service Pension Scheme. The Employment Judge was provided, for comparison with the Claimant’s conditions, with the contract of a locally employed member of staff. As one would expect it makes no similar provision.”
“In summary, therefore, the provisions of theOfficial Secrets Act 1989 have only limited application to the Claimant; but the fact that his contract tells the Claimant that the 1989 Act applies to him at all is not without significance. It draws his attention to the fact that even when serving abroad, as a British citizen working for a body of a public nature (the Respondent describes itself as a 'non departmental public body'), he may come within its purview. It is difficult to envisage such a provision in the contract of an expatriate unless his employment had an exceptional connection with the UK. It is also difficult to envisage the inclusion of such a provision in the contract of a locally employed teacher - indeed it is not to be found in the sample which the Respondent provided.”
“43. In assessing these points, I am not persuaded that the aims and policies of the British Council have any particular relevance. Some of the citations relied upon, for example from the Respondent’s Code of Conduct, point in the opposite direction. For example: ‘As the world’s leading cultural relations organisation, the British Council touches the lives of millions each year …’ (paragraph 15a of written submission.) This strikes me as pointing to the countries in which the Respondent operates. ‘Our Code … sets the standards for the way we work in all our activities and locations …’ (paragraph 15b.) This does not establish any tangible link with the UK or UK employment law, especially when ‘our Code of Conduct sets out the principles that everyone who works for the British Council must follow … Our Code of Conduct applies worldwide …’ (Paragraph 15d.) The Equality Policy is said to originate in the UK, but that is hardly surprising. I conclude that none of these expressions of policy, or the nature of the Respondent’s work meet Mr Laddie’s fundamental point that the Claimant was posted abroad, for a British employer, for the purposes of a business carried on in Bangladesh. This is what I consider the evidence establishes. It would not be a reflection of the facts to say he worked for a business carried out in the UK or London. 44. There was no reporting line to London and the TCM had considerable autonomy. His line management was local and regional, as I have described. These facts are inconsistent with his submission. They also have to be placed in the context of an employment history in which the Claimant was always based abroad. Such connections as there are to the UK do not amount to connections of sufficient strength to displace the general rule. On the contrary, his circumstances appear to me to fall within that rule. ...”
“(1) ... that the Employment Judge limited his analysis to whether the Claimant fell within one of the two identified categories of employee mentioned by Lord Hoffmann in Serco; he argues that the Employment Judge did not have sufficient regard to the underlying principle identified in Ravat. The Employment Judge, while making findings of fact on many of the factors, did not then carry out the required comparative analysis which is required by the modern cases. If he had done, he would have appreciated that the connections with Great Britain and British employment law were indeed overwhelmingly closer than with any other country. (2) ... that the Employment Judge, perhaps because he did not carry out the comparative exercise required, did not mention and left out of account a whole range of factors which ought to have born upon his decision.”
“I have ... reached the conclusion that the Claimant established an overwhelmingly closer connection with Great Britain and with British employment law than any other system; and that Mr Stuart’s first submission is partly correct and his second submission correct. While the Employment Judge set out the law correctly he did not carry out in any structured way the exercise of looking at the factors as a whole pointing towards and away from a connection with Great Britain and with British employment law; and his conclusions show that he left out of account factors which point strongly in favour of the Claimant’s case.”
“58. The third factor is that the Claimant was entitled to a Civil Service pension – an entitlement granted by a UK Act of Parliament which specifically added the Respondent to a list of institutions of a generally public or governmental nature. This is a remarkable feature to find in the contract of employment of an expatriate employee. It creates another strong link to the UK and to UK employment law: a Civil Service pension is a benefit of enormous value, itself governed by UK statutory provision. It also points to the particular standing of the Respondent, to which I will return in a moment. This pension was not granted to locally employed teachers; the Claimant received it because he was in the special category of being UK appointed staff. 59. The fourth factor is that 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. This again is an exceptional provision to find in the contract of an expatriate employee. 60. The fifth factor is the nature of the Respondent. It is, as it describes itself, a 'non departmental public body'. Its status for pension purposes reflects the fact that it belongs to a list of organisations which, while not directly part of government, are recognised as playing such a part in the life of the nation that it is right to afford a Civil Service pension to their employees.”
“These factors, taken together, to my mind establish a quite exceptional degree of connection with Great Britain and British employment law.”
“64. I can see very little to establish any connection with Bangladeshi employment law; the Claimant’s rights were derived from his contract which was governed by English law, and it is fanciful to suppose that the parties intended that he would enforce them by bringing proceedings in Bangladesh. Moreover his stay in Bangladesh was always intended to be short term. 65. There was of course an important connection with Bangladesh while the Claimant was employed there: he was full-time, running a language centre, working with locally employed staff and expected to ensure that it broke even. The Employment Judge was entitled to say that he worked in a business which was carried on locally, was managed locally and substantially relied on its own fee income - indeed, it was expected to be self sufficient. As against this, the Respondent was not a profit making business; the TC was part of the operation of the Respondent, a UK charity and public body; and it was part of a broader operation intended to serve as the UK’s international organisation for cultural relations and educational opportunities. Moreover he was expected to stay in Bangladesh only for a limited period and then to move on elsewhere, as he had done throughout his career.”
“I have therefore concluded, even without taking into account the provision of the contract concerning theOfficial Secrets Act 1989 , that when the requisite comparative exercise is carried out the Claimant established the 'overwhelmingly closer connection' with Great Britain and British employment law. I have reminded myself that respect is due to the fact finder’s view and that whether the test is satisfied will often be a question of degree. In my judgment, given the facts which were found by the Employment Judge, as a matter of law territorial jurisdiction was established.”
“In my opinion the question in each case is whether section 94(1) applies to the particular case, notwithstanding its foreign elements. This is a question of the construction of section 94(1) and I believe that it is a mistake to try to formulate an ancillary rule of territorial scope, in the sense of a verbal formula such as section 196 used to provide, which must then itself be interpreted and applied.”
“On the other hand, the fact that we are dealing in principles and not rules does not mean that the decision as to whether section 94(1) applies (and therefore, whether the Employment Tribunal has jurisdiction) is an exercise of discretion. The section either applies to the employment relationship in question or it does not and, as I shall explain later, I think that is a question of law, although involving judgment in the application of the law to the facts.”
“[Counsel for the employees] said that the tribunal's conclusion was a finding of fact which the Employment Appeal Tribunal (and your Lordship's House on appeal) had no jurisdiction to disturb. Like many such decisions, it does not involve any finding of primary facts (none of which appear to have been in dispute) but an evaluation of those facts to decide a question posed by the interpretation which I have suggested should be given to section 94(1), namely that it applies to peripatetic employees who are based in Great Britain. Whether one characterises this as a question of fact depends, as I pointed out in Moyna v Secretary of State for Work and Pensions[2003] 1 WLR 1929 , upon whether as a matter of policy one thinks that it is a decision which an appellate body with jurisdiction limited to errors of law should be able to review. I would be reluctant, at least at this stage in the development of a post-section 196 jurisprudence, altogether to exclude a right of appeal. In my opinion, therefore, the question of whether, on given facts, a case falls within the territorial scope of section 94(1) should be treated as a question of law. On the other hand, it is a question of degree on which the decision of the primary fact-finder is entitled to considerable respect. In the present case I think not only that the tribunal was entitled to reach the conclusion which it did but also that it was right. I would therefore dismiss Veta's appeal.”
“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 section 94(1) 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. The reason why an exception can be made in those cases is that the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them. The expatriate cases that Lord Hoffmann identified as falling within its scope were referred to by him as exceptional cases: para 36. This was because, as he said in para 36, 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. 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.”
“The question whether, on given facts, a case falls within the scope of section 94(1) is a question of law, but it is also a question of degree. … . The question of law is whether section 94(1) applies to this particular employment. 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.”
“The words ‘at least at this stage in the development of a post-Section 196 jurisprudence’ anticipate that a change might be desirable once that jurisprudence had sufficiently developed. In paragraph 29 of Ravat … Lord Hope treated the question of whether a case was within the scope of Section 94(1) as a question of law, but also a question of degree: and recognised that it was a question of fact 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. At the outset of the hearing I asked whether the time may now have come to treat the question of ‘sufficiently close connection’ as indeed being a question of fact, such that a decision by a Tribunal, properly directing itself as to the applicable law, with regard to appropriate cases, would disclose no error of law unless it were shown to be perverse. [Counsel for the respondents] submitted that this was so. In the light of Lord Hope’s words, I consider his submission to be well founded.”
“Thus it was hoped that the Upper Tribunal might be permitted to interpret ‘points of law’ flexibly to include other points of principle or even factual judgment of general relevance to the specialised area in question. That might have seemed controversial. However, as an approach it was not out of line with the developing jurisprudence in the appellate courts.”
“25. ... There is a good deal of high authority for saying that the question of whether the facts as found or admitted fall one side or the other of some conceptual line drawn by the law is a question of fact: see, for example, Edwards v Bairstow[1956] AC 14 and O'Kelly v Trusthouse Forte plc[1984] QB 90 . What this means in practice is that an appellate court with jurisdiction to entertain appeals only on questions of law will not hear an appeal against such a decision unless it falls outside the bounds of reasonable judgment. 26. … It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whether they fall within some legal category. In his classic work on Trial by Jury Lord Devlin said (at p 61): ‘The questions of law which are for the judge fall into two categories: first, there are questions which cannot be correctly answered except by someone who is skilled in the law; secondly, there are questions of fact which lawyers have decided that judges can answer better than juries.’ 27. Likewise it may be said that there are two kinds of questions of fact: there are questions of fact; and there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment. But the usage is well established and causes no difficulty as long as it is understood that the degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question: see In re Grayan Building Services Ltd[1995] Ch 241 , 254-255.”
“I discussed these developments in an article in 2009 (Tribunal Justice, A New Start [2009] PL 48, pp 63-64). Commenting on Moyna I said: ‘The idea that the division between law and fact should come down to a matter of expediency might seem almost revolutionary. However, the passage did not attract any note of dissent or caution from the other members of the House. That it was intended to signal a new approach was confirmed in another recent case relating to a decision of an employment tribunal, Lawson.’ Of Lord Hoffmann's words in Serco itself, I said: ‘Two important points emerge from this passage. First, it seems now to be authoritatively established that the division between law and fact in such classification cases is not purely objective, but must take account of factors of “expediency” or “policy”
“The fact that Mr Dhunna was engaged under an English contract of employment by a company incorporated in England and Wales might be thought to be a compelling factor in his favour. But it is not; Lord Hoffmann made it clear in Lawson, at [27], that what counts is whether or not the employee was working in Great Britain at the time of his dismissal, rather than what was contemplated when his employment contract was made … .”
“That label [i.e. per incuriam] is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate court or to the right of a judge of the High Court to disregard a decision of the Court of Appeal.”
“The better view, I think, is that, while neither of these things can be regarded as determinative, they are nevertheless relevant. Of course, it was not open to the parties to contract in to the jurisdiction of the employment tribunal. As [counsel] put it, the parties cannot alter the statutory reach of section 94(1) by an estoppel based on what they agreed to. The question whether the tribunal has jurisdiction will always depend on whether it can be held that Parliament can reasonably be taken to have intended that an employee in the claimant's position should have the right to take his claim to an employment tribunal. But, as this is a question of fact and degree, factors such as any assurance that the employer may have given to the employee and the way the employment relationship is then handled in practice must play a part in the assessment.”
“While there are doubtless certain functions in which [the Council] could properly be regarded as being central to British public life, it is submitted that nobody could regard the management of a self-funded overseas English language school as falling among them.”
“In practice the Saudi Arabia budget was independent of the company’s UK financial budget, illustrated in particular by the fact that when the Saudi Arabia business was closed because of poor financial performance the Saudi Arabian losses were not absorbed into the company’s UK finances. …”
“37. First, I think that it would be very unlikely that someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Great Britain. But that would not be enough. Many companies based in Great Britain also carry on business in other countries and employment in those businesses will not attract British law merely on account of British ownership. The fact that the employee also happens to be British or even that he was recruited in Britain, so that the relationship was 'rooted and forged' in this country, should not in itself be sufficient to take the case out of the general rule that the place of employment is decisive. Something more is necessary. 38. 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 section 94(1). The distinction is illustrated by Financial Times Ltd v Bishop ..., a decision of the Employment Appeal Tribunal delivered by Judge Burke QC. Mr Bishop was originally a sales executive working for the Financial Times in London. At the time of his dismissal in 2002 he had been working for three years in San Francisco selling advertising space. The employment tribunal accepted jurisdiction on the ground that under European rules it had personal jurisdiction over the Financial Times: see article 19 of Council Regulation (EC) No 44/2201 (OJ 2001 L12, p 1). But that was not a sufficient ground: the Regulation assumes that the employee has a claim to enforce, whereas the question was whether section 94(1) gave Mr Bishop a substantive claim. Having set aside this decision, the appeal tribunal was in my opinion right in saying that the findings of fact were inadequate to enable it to give its own decision. The question was whether Mr Bishop was selling advertising space in San Francisco as a part of the business which the Financial Times conducted in London or whether he was working for a business which the Financial Times or an associated company was conducting in the United States: for example, by selling advertising in the 'Financial Times' American edition. In the latter case, section 94 would not in my view apply. (Compare Jackson v Ghost Ltd[2003] IRLR 824 , which was a clear case of employment in a foreign business.)”
“However in this case the Tribunal found that in this case the claimant was not selling to suppliers as an extension of business carried on in the UK but was developing an entirely new business selling to new contractors in a new country pursuant to Saudi Arabian laws and customs.”
“[T]he Tribunal found that this case was different in that the claimant never worked in Great Britain and his work in Saudi Arabia was entirely separate to UK operations. The claimant was working on an entirely new venture in Saudi Arabia, attracting new business and new contractors there. He had never performed any work for the benefit of the UK business. The Saudi Arabian budget came within the overall UK budget but it was in practice administered separately.”
“8.1 For the above reasons the Tribunal concludes that there is not a strong connection between the claimant’s employment and Great Britain and British Employment Law. Although there are factors identified above which point in that direction, these in most instances (such as, for example, the terms of the claimant’s written employment contract, were there because of convenience in that the standard form UK contract was used because the claimant did not have a standard form document appropriate for Saudi Arabia) were decided by the Tribunal to be in the minority so far as significance to this issue is concerned. 8.2 As stated above, the Tribunal’s conclusion was that the claimant is an expatriate employee and was not working for the benefit of a business in Great Britain within the principles stated in Financial Times v Bishop, as the Tribunal found that the claimant had stronger connections to Saudi Arabia and the Middle East than to Great Britain and British Law. In particular, the claimant was not selling business supplies as an entirely new business selling to new contractors in Saudi Arabia pursuant to local Saudi Arabian laws and customs. 8.3 The factors which the Tribunal found most significant in this case were: 8.3.1 The normal rule for an expatriate employee is that the Act does not apply. 8.3.2 The claimant has lived in Lebanon for 10 years with a Lebanese wife. He commuted to work in Riyadh. He paid no UK tax or national insurance. He did not sell as an extension of a business in the UK. He had no property in the UK. The respondent paid for his accommodation in Riyadh. Saudi Arabian operations were funded from a separate budget. The claimant’s business visits to the UK were limited in number. He was not part of the respondent’s pension scheme as he lived abroad. It was his duty to obtain the appropriate work permits and visas.” 8.3.1 The normal rule for an expatriate employee is that the Act does not apply. 8.3.2 The claimant has lived in Lebanon for 10 years with a Lebanese wife. He commuted to work in Riyadh. He paid no UK tax or national insurance. He did not sell as an extension of a business in the UK. He had no property in the UK. The respondent paid for his accommodation in Riyadh. Saudi Arabian operations were funded from a separate budget. The claimant’s business visits to the UK were limited in number. He was not part of the respondent’s pension scheme as he lived abroad. It was his duty to obtain the appropriate work permits and visas.”
“In relation to the claimant’s contract of employment, the Tribunal found that the particular UK terms and conditions were used because of convenience. The respondent found it convenient to give to the claimant a standard UK contract amended in some parts.”
“(1) The ET erred in its application of Lawson, wrongly failing to find that the Claimant was working in KSA as part of a business conducted in the UK [i.e., in the common shorthand, that he fell within the posted worker exception]. (2) Alternatively, the ET erred in its approach to the comparative exercise it had to undertake: it had erroneously evaluated the factors showing a connection with Great Britain and British employment law as in the ‘minority’ and had wrongly had regard to what it found to be the subjective intention of the Respondent (its reason for using a British contract ‘for convenience’, for example) rather than applying an objective test. (3) Further, the ET had reached a perverse conclusion in finding that the KSA budget was independent of the UK budget as ‘illustrated in particular by the fact that when the Saudi Arabia business was closed because of poor financial performance the Saudi Arabian losses were not absorbed into the company’s UK finances’; there was no evidence for that finding.”
“I do not accept that the ET was bound to find - as a matter of law - that the present case fell squarely within the 'posted worker' category identified by Lord Hoffmann. This was a case where a UK company was establishing a new business in the KSA and the ET was entitled to find a degree of separation in that regard - to see it as akin to working for a business conducted in a foreign country, albeit belonging to British owners, or as a branch of a British business (Lawson, paragraph 38). I am satisfied that the ET was correct to see this as a case where it had to undertake a comparative assessment (per Elias LJ in Bates); the only question is whether it then failed to have regard to a relevant factor when carrying out this task.”
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …”
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
“Any detriment suffered in Great Britain by an employee or worker as a result of having made a protected disclosure anywhere in the world will constitute a breach of article 10 and ought therefore to be justiciable under Part 5 of the 1996 Act wherever in the world the employer is based and whether or not the employee is working in Great Britain at the relevant time: all that matters is that he is physically present in Great Britain.”
“There is no suggestion that any European Union legislation has effect in Singapore. Nor does the ECHR. The extension of jurisdiction of the 1996 Act was implicitly limited to the Member States of the European Union.”
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