In a ground-breaking ruling, an Employment Tribunal (ET) cited the will of Parliament and the rule of law in agreeing to hear a case brought by a former British Council employee who lives overseas and has never worked in the UK.
Following the termination of her employment in the United Arab Emirates (UAE), the woman wished to pursue various complaints against the British Council in this country. For its part, the Council contended that the ET lacked territorial jurisdiction to consider the matter and that her claim should be struck out.
Ruling on the jurisdictional issue following a preliminary hearing, the ET noted that the woman is a Romanian national who is settled with her family in the UAE, where she was recruited. She was paid in local currency and was not invited to join the Council’s pension scheme. She enjoyed none of the other benefits enjoyed by the Council’s UK personnel and had never worked in or travelled on business to the UK.
The British Council is a charity which operates in a great many overseas countries, as well as in the UK, and which exists to further British cultural and other interests abroad. It describes itself on its website as a non-department public body that spends UK taxpayers’ money and is formally accountable to Parliament.
The ET found that the woman, whose employment contract was governed by UAE law, was a true expatriate worker and a local employee of the Council through and through. She had no significant connection to Britain or British employment law.
In nevertheless accepting jurisdiction to hear her case, the ET noted the serious procedural difficulties she had faced in attempting to pursue a claim against the Council in the UAE. Even had she succeeded in doing so, the likelihood was that the Council could have defeated her claim by relying on diplomatic immunity arising from its close association with the British embassy in the UAE.
If it were to claim such immunity, the Council would clearly be acting as an emanation of the UK state. Its immunity from being sued in the UAE would effectively destroy any link the case had to UAE law, no matter how strong that link would otherwise have been. Successful reliance on such immunity would also have the potential to breach the woman’s human right to a fair hearing.
Whilst acknowledging that the Council is essentially a private organisation, the ET noted that it enjoys certain privileges due to its close association with the UK government. Put simply, Parliament could not have intended that a British employer, organised and operating in accordance with UK law, should escape judicial scrutiny of its actions relating to its employees hired in foreign lands.
Given the lack of any legal remedy open to the woman in the UAE, the ET found that such an approach would compromise the rule of law. That was particularly so given that the Council acts as a cultural ambassador, representing and promoting UK values and democratic principles abroad. The ruling opened the way for the woman to proceed with her claim in this country.