In Pervez v Macquarie Bank the Employment Appeals Tribunal (EAT) found that an employee who is seconded to work in England can bring statutory claims in England, even if the acts complained of occured overseas and the employer neither has a place of business in England nor carries on transactions there. The tribunal rule that permits claims only against a respondent that resides or carries on business in England or Wales cannot be used to prevent an employee from enforcing his or her statutory employment rights.
The ability to bring statutory employment claims in England or Wales depends first on whether the claim falls within the territorial scope of the relevant legislation, and second on whether the tribunal rules permit it to take jurisdiction. The tribunal rules require that either:
- the respondent to a claim reside or carry on business in England or Wales; or
- the relevant acts or omissions be alleged to have occurred in England or Wales.
In this case an employee was seconded by a foreign employer to work in London at the employer's British group company. He was eligible to bring claims for discrimination (as he satisfied the requirement to work at least partly in Britain) and unfair dismissal (as at the time of his dismissal he worked in Great Britain on a settled and indefinite basis and was integrated into the British operation). It was conceded that the relevant acts occurred in Hong Kong.
The EAT ruled that the requirement for an employer to carry on business in England should be construed as being satisfied by an employer seconding an employee to work in England, even if the supply of workers to third parties is not part of the employer's ordinary business. To rule otherwise would prevent employees from enforcing the protections to which they are entitled under primary legislation.
For further information on this topic please contact Andrew Brown at Herbert Smith LLP by telephone (+44 20 7374 8000), fax (+44 20 7374 0888) or email ([email protected]).