The claimant in Lodge v Dignity & Choice in Dying, an Australian citizen, started work for her employer in London in February 2008.  Later that year she decided to return to Australia for family reasons.  From January 2009 until her resignation in June 2013 she worked as Head of Finance remotely from her home in Australia.

During her time in Australia she was treated as an Australian resident for tax and pension purposes (giving her more favourable tax treatment) and dealt with her own tax affairs.  She returned to London for two weeks each year to work, and attended London for meetings on two other occasions.  Her contract continued to be governed by English law.

The EAT found (overturning the tribunal decision) that the tribunal did have jurisdiction to hear complaints of unfair dismissal and whistleblowing.  Despite the fact that the claimant had been posted to Australia at her own request, she still fell within the "expatriate worker" category – one of the groups identified in Lawson v Serco as eligible for unfair dismissal protection.  The EAT singled out the following factors as being of particular significance:

  • All the work carried out by the claimant was wholly and exclusively for the benefit of the employer's London operation.
  • The claimant had no right to bring a complaint in Australia before the Fair Work Commission (the employment tribunal equivalent).
  • A grievance raised by the claimant was heard and dealt with in London.

The decision makes it clear that where work is carried out exclusively for the benefit of a business operating entirely within Great Britain, it may be difficult for an employer to argue that there is an insufficiently strong connection with Great Britain and British employment law.