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Legal Minds

10 April 2015 / by / in

Unfair dismissal and whistleblowing protection – what if an employee works abroad?

The ability of overseas employees to bring claims in the UK employment tribunals has been a long running question for the UK courts, and one which has recently returned to the fore in the cases of Lodge v Dignity & Choice in Dying & Anor (2014) and Creditsights Ltd. v Dhunna (2014).

These two cases highlight that the courts will decide if a “sufficiently strong” connection exists to Great Britain and UK employment law (for the purposes of allowing a claim to proceed in the employment tribunal) by carefully considering all of the features surrounding the individual’s employment.

The case of Dhunna confirmed that there is no single factor which will dictate whether an overseas employee has the necessary connection to Great Britain for these purposes. The claims were brought by an employee of a British company who had moved to work in Dubai. An assessment of the facts identified that the technical set up of the overseas business; the location of the employee’s clients; and the way the employee was being paid were pertinent to the question of the employee’s “connection”. However, the Court of Appeal rejected the employee’s argument that a comparison of the law in Great Britain and that in the jurisdiction where he was working at the time of his dismissal was required to determine which was the better system of law, and held that the tribunal did not have jurisdiction to hear claims for unfair dismissal and breach of the right to be accompanied at a disciplinary hearing.

Whilst the employee in Dhunna failed to establish a sufficiently strong connection with Great Britain to bring the claims, the application of the “sufficiently strong” connection test can have results which some employers may consider surprising. For example, in the case of Lodge, the EAT held that an Australian citizen employed by a British company, who had worked remotely in Australia for family reasons over a number of years, was entitled to pursue unfair dismissal and whistleblowing claims in an English employment tribunal. Whilst a number of the facts did not suggest a particularly strong connection to Great Britain – the employee did not pay tax or national insurance in Britain; she took up Australian residency; and remained an Australian citizen throughout – the fact that all of the work that she performed in Australia was for the benefit of the employer’s London operation was ultimately determinative.   

What this means for employers

As a growing number of businesses adopt flexible and remote working, and with technological advancements allowing increasing numbers of employees to work in overseas offices, or even working abroad remotely for employers based in Great Britain, this issue is becoming ever more significant.

However, whether an overseas employee will be able to bring any claims in the employment tribunal will turn on the facts. Employers should therefore think carefully about the arrangements that they have in place for employees working abroad, giving particular consideration to the part of the business an employee is working for. Given that both parties will want to clarify what rights exist under the employment contract, and how they can be enforced, this is something to consider both at the commencement of the employment relationship and when employees are granted permission to start working remotely.

 

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