When deciding whether a tribunal has territorial jurisdiction to hear a claim of unfair dismissal, a number of factors have to be considered. In Rajabov v Foreign & Commonwealth Office, the EAT confirmed that the fact that the employee’s claim would be unlikely to succeed in the country in which he was dismissed was not a determinative factor. The key question was whether the person’s job had more of a connection with Great Britain.
Basic facts
Following his dismissal on grounds of redundancy on 30 June 2018 from his job at the British Embassy in Tajikistan, Mr Rajabov lodged tribunal proceedings for unfair dismissal.
After invoking the ACAS conciliation mechanism, he should have presented his claim by 24 October 2018 but did not lodge it until 2 March 2019. He said that this was because he had been trying to gather evidence to show he had been dismissed for blowing the whistle on financial wrongdoing. He also claimed that he had been assured he would be protected by UK legislation should he raise his concerns.
Tribunal decision
The key question for the tribunal was whether his employment had more of a connection with Great Britain as opposed to Tajikistan. It concluded that as his contract was governed by the law of Tajikistan, he had been recruited locally, he lived locally and he paid tax and made social security contributions locally, it did not have territorial jurisdiction to hear the claim. Although his employer clearly had connections with the UK government, this did not outweigh those other factors. The tribunal did not accept that Mr Rajabov had been given an assurance that he would be protected by UK whistleblowing legislation.
In addition, Mr Rajabov had presented his claim over four months late. Given the extent of the delay and the fact that it had been reasonably practicable for him to have presented it within time, the tribunal held that it would not be just and equitable to extend time.
Mr Rajabov was allowed to appeal on limited grounds. The first was that the tribunal had failed to take sufficient account of the fact that he would be prevented from claiming against the embassy locally as it may have diplomatic immunity. The second was that he had been given an assurance that he would have a remedy in UK law for whistleblowing. With regard to the issue of time limits, he was allowed to appeal on the ground that the tribunal should not have relied on an email from Mr Rajabov in early September 2019, which made clear his views that he had been dismissed for whistleblowing.
EAT decision
Dismissing the appeal on all grounds, the EAT held that although it was likely that Mr Rajabov could not sue the embassy in the local courts, this factor was not so significant that it trumped all other factors when determining if there was a close connection to Britain.
Relying on the decision in Bryant v Foreign & Commonwealth Office, the EAT held that the fact that diplomatic immunity could be relied on to deny a claimant a remedy in the country in which they worked did not require special consideration. Neither was it an argument which disclosed a close connection with Britain. The tribunal had not, therefore, made an error of law in this regard. As for the allegation that he was to benefit from UK whistleblowing law, the tribunal had rejected this as it was not part of his witness evidence. As this was a factual finding, it was not one which the EAT could overturn.
With regard to the appeal on time limits, the EAT held that although the tribunal had made an error in relying on the September email, it had considered evidence that Mr Rajabov had suspected that whistleblowing was the reason for his dismissal. In any event, the EAT found that the tribunal was right to be sceptical of the legal proposition that not being sure of the merits of a claim was a sufficient impediment to prevent a claim from being brought in time. Furthermore, even if it had not been reasonably practicable for him to present the claim by October 2018, it had not been presented within a reasonable period thereafter and there was no basis for challenging that decision.