Working abroad

13 Nov

People who work abroad can get unfairly dismissed and discriminated against just like any other employee. To what extent can such employees claim in the UK Employment Tribunals?

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People who work abroad can get unfairly dismissed and discriminated against just like any other employee. To what extent can such employees claim in the UK Employment Tribunals?

There have been several high profile cases over the last few years starting with Lawson v Serco in 2006, which established that employees in foreign lands are not protected by the Employment Tribunals in the UK, but that this is subject to various exceptions.

Peripatetic employees who travel abroad such as airline pilots, international management consultants and salesmen etc will be protected where their work base is in the UK. The base must be identified by what happens in practice rather than by the terms of the contract.

Only a narrow category of expatriates will be protected – including for example representatives of businesses conducted at home, such as foreign correspondent on the staff of a British newspaper who is posted abroad but who is nevertheless a permanent employee of the newspaper who could be posted to some other country.

Since Lawson v Serco there have been a series of further reported cases culminating in the recent case Creditsights Ltd v Dhunna, in which the Court of Appeal has established that the exceptions mentioned in Lawson are just examples illustrating a general principle, which is that persons working abroad will be protected in the UK Employment Tribunals if they can show that there is a particularly close connection between them and the UK and between their employment and UK employment law. Where these connections are close enough an exception will be made so these persons can claim.

The Employment Tribunal will look at claims on a case by case basis but the main factors which tend to be relevant in deciding territorial jurisdiction are: where the employee was recruited, where the work is done, where the main business of the employer is conducted, from where the employee was line-managed,  where he has his home to which he returns after work or on leave, where he is paid, whether he is paid in UK sterling, and whether he has paid UK tax and NI contributions on his salary.

In some cases the fact that the employment contract contains a choice of law clause stating that UK law will apply has been regarded as important factor. However other cases have not followed this approach because of section 204 ERA 1996 and the fact that ET jurisdiction is a matter of statute and cannot be created by private agreement.

Jeremy Burns

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