June 18, 2019

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UK Tribunal Allows Expatriate to Bring Claims in the UK

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, “truly expatriate.”

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 Employment Tribunals.

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.

© 2019 Proskauer Rose LLP.

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About this Author

Daniel Ornstein, Litigation Attorney, Proskauer Law FIrm
Partner

Dan Ornstein leads our London labor and employment team and is a co-head of our International Labor & Employment Group. He has over 15 years of experience dealing with a broad range of UK and international employment issues. Dan is a go-to advisor for clients who rely on his sophisticated advice both on day-to-day matters and high-stakes situations. Dan is ranked in Chambers UK, which describes him as "incredibly analytical", "incredibly intelligent and an excellent sounding board” and someone who “displays both empathy and an assured knowledge of the best way to...

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Erika C Collins, Labor, Employment, Attorney, Proskauer Rose, LAw Firm
Partner

Erika Collins is a Partner in the Labor & Employment Law Department and co-head of the International Labor & Employment Law Group, resident in the New York office. Erika advises and counsels multinational public and private companies on a wide range of cross-border employment and human resources matters throughout the Americas, Europe, Africa and Asia.

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Law Clerk

Yonatan Grossman-Boder is an associate in the Labor & Employment Law Department. He assists clients in a wide range of labor and employment law matters, including litigations, arbitrations, employment discirmination, labor-management relations and internal investigations.  

At Duke University School of Law, Yoni served as the publication and lead articles editor of Law and Contemporary Problems and was a legal intern at the New York Human Resources Administration Employment Law Unit. As a legal intern, he worked on a variety of employment matters, including employment...

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