Many of our international clients face uncertainty as to whether their employees working abroad are likely to be able to access the UK Employment Tribunal in the event of a dispute or dismissal. The parameters on territorial jurisdiction were established by the 2004 case of Serco Limited -v- Lawson which confirmed that the right not to be unfairly dismissed covers employment in Great Britain. In giving guidance as to when an employee will be deemed to be employed in Great Britain, the court identified three principal categories of employees who may be covered:-
1. Working in Great Britain
The most relevant factor in determining this is whether the employee is actually working in Great Britain at the time of dismissal rather than what was contemplated at the time the employment contract was entered into.
2. Peripatetic employees
The place where an employee carries out the main part of their work will generally be their base unless that base is demonstrably elsewhere.
3. Expatriate employees
It will be unusual for an employee who works and is based abroad to come within the scope of British employment law. The exceptions include where an employee is posted abroad by a British employer for the purposes of a business operating in Britain or an employee of a British employer operating within an extra-territorial British enclave.
The principles in the Serco case have been developed so that the current test as to whether a tribunal has jurisdiction is whether the connection with Great Britain is sufficiently strong that Parliament would have regarded it as appropriate for a tribunal to deal with the employee’s claim.
The guidance has been held to apply to other legislation where the territorial scope is not set out e.g. discrimination claims.
The recently reported case of Lodge -v- Dignity and Choice in Dying and Others concerned an Australian citizen who initially worked for a charity in London and whose contract of employment was subject to English law. Her employer agreed that she could continue to work for them remotely when she wished to move to Australia and she continued to do so up until her resignation in June 2013 when she brought claims before an Employment Tribunal for unfair dismissal and detriment due to making a protected disclosure under the whistle-blowing legislation. The Employment Tribunal initially declined jurisdiction as the judge felt her connection with the UK was not strong, but on appeal the Employment Appeal Tribunal accepted jurisdiction on the basis that all of the Claimant’s work done from her home in Australia was for the benefit of the charity in London, As she had been permitted to work remotely from Australia, her situation was no different from an employee posted abroad by a UK company within the Serco guidelines. The Employment Appeal Tribunal further took into account that the employer in this case did not dispute the Claimant’s contention that she had no right to bring claims in Australia and the fact that she had previously raised a grievance that was handled in London.
Requests of this type are not, by any means unusual in our experience, but the employment law implications should always be considered.
Jane Klauber and Fudia Smartt
Download UK businesses operating abroad - jurisdiction of the UK Employment Tribunal.