252: British Embassy employee recruited in Egypt not protected by UK employment law

The Employment Rights Act 1996 and the Equality Act 2010 do not specify whether they apply to employees working outside Great Britain, leaving the courts to decide the question of jurisdiction. Case law has established that the main test is whether an employee working abroad has a much stronger connection with Great Britain and British employment law than with any other system of law, weighing up factors such as where they were recruited, how they were paid, and whether they were managed from the UK. In Hamam v Foreign and Commonwealth Office, the EAT has held that a British Embassy employee in Egypt was not protected by UK employment law.

Ms Hamam, an Egyptian citizen, was employed from 2008 to 2017 at the British Embassy in Cairo. Following her dismissal for redundancy, she brought Employment Tribunal claims in the UK for unfair dismissal, race discrimination and detrimental treatment arising from whistleblowing. At a preliminary hearing to decide jurisdiction, the Tribunal held that it could not hear Ms Hamam’s claims because her employment was not sufficiently connected to Great Britain. Relevant factors included:

• she was recruited in Egypt;
• she worked predominantly and permanently in Cairo and her line management and HR support services were local;
• she was not entitled to join the Civil Service Pension Scheme or to join the UK Civil Service union;
• her contract was governed by Egyptian law and contained no mobility clause;
• she was paid and taxed locally; and
• her employment was terminated following local legal processes.

Ms Hamam appealed this decision on various grounds, including that the Tribunal had not given sufficient weight to her argument that the British Embassy in Cairo was a ‘British enclave’. Employees working in a British political or social enclave were one of the categories of employee identified in the case of Lawson v Serco who could potentially come within the scope of British employment law.

The EAT dismissed Ms Hamam’s appeal, noting that there is no definition of a ‘British enclave’ and that the example given in Lawson v Serco referred to an expatriate employee of a British employer working in what amounted for all practical purposes to a British enclave in a foreign country, such as a military base. This was not applicable to the British Embassy in Cairo or Ms Hamam. Crucially, she was not a British national, nor a British worker posted abroad, and she was recruited and worked in Cairo under local labour laws. The EAT concluded that the Employment Tribunal had looked at all the factors relevant to the ‘sufficient connection’ test, including the nature of the British Embassy, and had applied the law correctly.

The decision in this case is not surprising, but it is a useful reminder that Tribunals will take a number of factors into account when considering jurisdiction. It is worth noting that employees who are not protected by UK legislation will usually come within the legislation applicable locally, but this is not a factor that has to be considered by the Employment Tribunal.