International employers are no doubt aware that an employee who works outside the UK may have the right to bring a claim for unfair dismissal or redundancy in a UK employment tribunal where they can show a strong connection to Great Britain.
But what is the test for "a strong connection to Great Britain" and how do UK employment tribunals interpret it? A recent claim by a UK national living in Lebanon and working in Saudi Arabia under a UK contract shows how fact sensitive the question really is in practice, and how easily a tribunal can get it wrong.
The case in point concerned the Claimant, Mr Green, who had been managing director in charge of the Respondent's Saudi Arabian operations. When recruited, the Respondent used its UK template employment contract, which referred to British employment legislation and UK policies on anti-bribery etc. The Claimant’s line manager was in the UK and other support services (such as HR) were located there. The Claimant was also paid in sterling. The decision to make the Claimant redundant was made at a meeting of the Board of Directors in UK with the employer’s process supported by HR in the UK.
With all those "connections" to the UK, any employee might be forgiven for thinking that they may have a chance in bringing a claim before a UK tribunal. However in this case, the Tribunal found that the Claimant was not entitled to bring a claim for unfair redundancy in the UK tribunal because, on the evidence, it decided there was a closer connection to Saudi Arabia than the UK. The Claimant appealed to the Employment Appeal Tribunal which decided that the Tribunal had applied the wrong test. The Tribunal had impermissibly considered the subjective intention of the Respondents when providing a contract governed by English law (the Respondent argued it was “for convenience” only that they had used the UK template contract), and not the objective fact of that choice of law which was a contractually binding term on both parties.
Once again we see how fact critical these decisions are. But not all EAT decisions take the same line and that remains a potential issue. As noted by the EAT in this case, there are now at least 22 cases on this question of jurisdiction.
For UK employers and their UK HR support, every clause in the employment contract is important, including the choice of law (normally a choice made by the employer) when establishing arrangements for those employed abroad by UK companies. Employers who put the contracts in place correctly, will be far less likely to face a tribunal in the UK where employees live and work outside the UK.