In the recent case of Hamam v. Foreign and Commonwealth Office UKEAT/0123/19,the Employment Appeal Tribunal (EAT) considered whether a locally recruited employee working at the British Embassy in Cairo was eligible to bring employment tribunal claims in Great Britain.
Sufficient connection test
The Employment Rights Act 1996 (ERA) and the Equality Act 2010 are silent about whether someone working outside the territory of Great Britain can claim their protection. In order to deal with this territorial uncertainty, the courts developed the “sufficient connection” test, which provides that a variety of factors are relevant when considering the connection between the circumstances of a person’s employment and British employment law. Significant factors include the employee’s place of work, the parties’ choice of law and where the employee was recruited. If a sufficiently close connection is established, the employee can bring an employment tribunal claim in Great Britain, even though they are employed abroad.
Ms Hamam was an Egyptian national living in Egypt. She was recruited by the British Embassy there. Following termination of her employment, she sought to bring claims in the Employment Tribunal for discrimination, victimisation, unfair dismissal and detriment resulting from an alleged protected disclosure. As a preliminary issue, the tribunal considered whether it had jurisdiction to hear the claims. The tribunal decided that it did not have jurisdiction as Ms Hamam was “not sufficiently connected” to Great Britain. In considering the issue, the judge took into account a number of factors, including the fact that Ms Hamam was recruited in Egypt, she was Egyptian, she worked permanently in Cairo, her line management was handled locally and she was not eligible for the UK civil service pension scheme. Ms Hamam appealed.
The EAT decision
The EAT dismissed Ms Hamam’s appeal. The EAT considered the relevant case law regarding territorial jurisdiction and decided that the case of Bryant v. Foreign and Commonwealth Office  UKEAT 174 was of considerable significance. The EAT distinguished Bryant from the case of Lawson v. Serco, a key authority on the territorial jurisdiction test.
The judge noted that, although Mrs Bryant had been a British citizen, there were a number of similarities with Ms Hamam’s case, such as the fact that both claimants were engaged and employed at all times outside the UK, their post did not involve reporting back to or taking instructions from the employer’s offices in the UK, their duties were carried out entirely outside the UK, they were paid local rates and their employment was subject to foreign law. In Bryant, the EAT held that the employee was not covered by the ERA despite her nationality.
The EAT went on to consider the argument that Ms Hamam was protected by UK employment legislation because the Embassy was a “British enclave“, an argument based on the previous case law. It concluded:
- there is no definition of what constitutes a British enclave;
- not everyone who works in a British enclave comes within the scope of Section 94(1) or ERA;
- there is no case in which a locally employed individual has been held to fall within the scope of Section 94(1) because they worked in a British enclave; and
- there are some cases, especially those concerning military bases, where the employee may have lived and worked within the enclave, but there are also other cases where the employee worked, but did not live, within the enclave.
The EAT held that it did not matter whether the Employment Tribunal applied the “British enclave” label to the British Embassy as it was not determinative. In any event, there was no error in law in finding that the British Embassy in Cairo was not a British enclave as this merely formed part of the assessment of facts. The EAT held that the case was not sufficiently distinct from Bryant to bring the claimant within the scope of the ERA.
The case highlights that a wide range of factors have to be considered when deciding whether an employee working abroad has a”sufficient connection” with the UK. Each case must be considered on its own facts but the categories established in case law can provide useful guidance. The case is also a useful reminder that working in a British enclave is of itself unlikely to be sufficient to entitle an employee to the protection of UK employment legislation.
It is important to remember that even if UK legislation does not offer protection, the employee will still usually be protected by the legislation applicable in the country in which they are employed. If you are concerned about international employment rights, please get in touch – with our global coverage we are well placed to assist.