The EAT has held that an Australian citizen employed by a British company, and working for the UK business, was entitled to bring unfair dismissal and whistle blowing claims in the UK notwithstanding that she worked remotely in Australia for personal reasons.
Lodge v Dignity & Choice in Dying and others
Ms Lodge, an Australian citizen, was employed as Head of Finance. Her contract of employment was governed by English law and subject to the English courts' exclusive jurisdiction. Her employer's offices were based in central London, but she also had a virtual private network ("VPN") installed on her laptop computer enabling her to work remotely from her home in Ealing. Her mother became ill and the employer agreed to her request to work remotely from her home in Australia, using the VPN. Following her move, she ceased to become subject to the UK's tax and pensions regime. She resigned following an unsuccessful grievance and brought claims for whistleblowing and constructive unfair dismissal in a UK Employment Tribunal.
The Tribunal held that it had no jurisdiction to hear her claims. Whilst it noted that Ms Lodge's employment was clearly connected with Great Britain, it considered that Parliament could not reasonably have intended that an employee who was an Australian citizen, who had wanted to relocate to Australia for personal reasons, and who had submitted herself to the Australian tax and pension regimes, should nonetheless be able to bring claims of unfair dismissal and whistle blowing in the UK. She appealed.
The EAT upheld her appeal and held that the Tribunal had jurisdiction to hear her claims. Relying on the EAT's decision in Bishop v Financial Times Ltd , the EAT held that the decisive factor was whether Ms Lodge's work abroad was for the benefit of the employer's London business or for a business outside the UK. If the former, the Tribunal would have jurisdiction to hear the claim.
The EAT accepted that Ms Lodge did not fall "foursquare" within the posted / expatriate employee category referred to by the House of Lords in Serco Ltd. v Lawson . However, it noted that all the work she did from Australia was for the benefit of the employer's London operation. The fact that the employer had agreed to her request to work remotely from Australia meant that she was in the same position as if it had been the employer who had posted her to work abroad with her consent.
The EAT also noted that the grievance which had led to her resignation had been handled in London in accordance with the UK Employee Handbook. Further, the employer had not disputed her assertion that she had no right to bring her claims in Australia.
This decision is unsurprising given both the facts of the case and previous case law. Employers who allow employees to work remotely from abroad should note that such employees will not be prevented from bringing claims in the UK merely because it is the employee who has requested to work remotely (rather than the employer), provided that the employee's work continues to be for the UK business.