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Court rules on whistleblowing protections for overseas workers

A recent judgment by the Court of Appeal provides important guidance on the territorial jurisdiction of the UK employment tribunals, particularly on the extent of statutory whistleblower protections for workers, an expert has said.24 Oct 2018

The appeal court handed down its judgment in the joined cases of Jeffery v British Council and Green v SIG Trading Ltd together, as both cases involved similar complex jurisdictional issues, according to employment law expert Ben Brown of Pinsent Masons, the law firm behind Out-Law.com. Pinsent Masons acted for SIG in its successful defence of an appeal brought by Mr Green.

"In its judgment, the Court of Appeal has been clear that the 'sufficient connection' question, namely whether factors connecting the employment of a truly expatriate worker with Great Britain and British employment law are strong enough to overcome the strong territorial pull of wherever in the world they are actually working, is to be characterised as a question of law, not fact," said Brown.

"However, it has also held that, in cases concerning territorial jurisdiction, the employment appeal tribunal (EAT) should not interfere in first instance decisions unless it is satisfied that the employment tribunal's assessment of the relevant factors, such as choice of law provisions and contractual terms, was plainly wrong – a high bar to any appeal," he said.

The employee in the Green case, Mr Green, is married to a Lebanese national and has lived in the Middle East with his family for over 15 years, with no private residence in the UK. Green, who had previously provided consultancy services to SIG through his firm, was appointed as the company's managing director for the Kingdom of Saudi Arabia (KSA) in May 2014.

His contract of employment was governed by English law and referred to British employment legislation and UK policies on ethics, corporate responsibility, anti-bribery and corruption. It also referred to his 'secondment' in KSA, although the employment tribunal found that this did not accurately represent the position as he worked in KSA the majority of the time. Green was not eligible to join SIG's pension scheme as he was not working in the UK, and he was treated as exempt from UK tax and National Insurance contributions by HM Revenue and Customs (HMRC).

Green was dismissed on grounds of redundancy. He brought an employment tribunal claim based on a breach of the whistleblowing protections in the Employment Rights Act 1996, as well as a claim for breach of contract. At a preliminary hearing, the tribunal found that it did not have jurisdiction to hear the whistleblowing claim because Green was employed outside of Great Britain and he did not have a sufficient connection with Great Britain and British employment law. The EAT agreed with most of the tribunal's conclusions, but ultimately partially upheld the appeal on the grounds that the tribunal had not properly considered the fact that the employment contract was expressly governed by English law.

The Court of Appeal dismissed Green's appeal against the tribunal's findings that it had no jurisdiction to hear his whistleblowing claim. As a question of fact, there simply was not enough of a connection between Green's employment and the UK. Green's legal team had attempted to argue that Green had been "posted abroad by a British employer for the purposes of a business carried on in Great Britain", but this too was dismissed by the Court of Appeal.

Green was granted permission to argue a new point – not made in the EAT - that his whistleblowing disclosures were protected by the right to freedom of expression set out in article 10 of the European Convention on Human Rights (ECHR) before the Court of Appeal. This was dismissed as, again, neither Green nor his employment were "within [the] jurisdiction" of the UK. Finally, the Court of Appeal granted SIG's cross-appeal against the EAT's finding that the employment tribunal wrongly disregarded the express choice of English law in Green's employment contract.

"The passage in question is not as clear as it should be, and I can see how on a literal reading it could be taken to be referring to the totality of the 'boiler-plate' terms; but on balance I would accept [SIG's] submission that the judge is unlikely to have been intending to discount the weight of one of the factors to which he had expressly referred in his earlier balance-sheet," said Lord Justice Underhill, giving the judgement of the court.

"The Court of Appeal dismissed the appeal brought by Green on human rights grounds, namely that article 10 of the ECHR protecting freedom of expression should be read as providing employment tribunals with automatic jurisdiction to hear whistleblowing claims brought by workers based outside the UK," said Ben Brown of Pinsent Masons. "This argument was categorically rejected by the court. The court held that the current jurisdictional test applied in cases concerning whistleblowing was sufficient to give effect to article 10 rights."

"Further, despite the Court of Appeal finding that a contractual choice of law provision is a relevant factor in determining the sufficient connection question, the court upheld SIG's cross-appeal on the grounds that the employment tribunal had not failed to give sufficient weight to this factor in its decision making process. This court went on to dismiss Green's claim entirely and reinstate the tribunal's original decision which confirmed it does not have jurisdiction to hear his claim," he said.

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