It is not enough for foreign based employees to have a passing presence or connection with the UK if they are to benefit from UK employment law protection. Their employment must have a strong connection to the country.
It is often thought that if a foreign based employee regularly works in the UK, perhaps even having an office here, they will benefit from UK employment law. This is not the case.
This month the Employment Appeal Tribunal (EAT) has held that a mere presence in the UK is not sufficient. In the case of Fuller v United Healthcare Services, the chief operating officer of an American company was given a new role involving an 'international rotation assignment'. This would involve being the managing director of a UK subsidiary where he would spend approximately 49% of his working time. He was given a flat in London in order to perform his duties. However the assignment came to an end and later, in the absence of alternative employment, he was dismissed in the United States. Mr Fuller attempted to bring a claim under the Equality Act for sexuality discrimination in London. This was rejected by the EAT. Case law is now well established that in order to have UK employment protection rights, an employee must have a ‘sufficiently strong’ connection to the UK. Mr Fuller was primarily still based in the United States, was paid in US dollars and was on US terms and conditions of employment. He worked not only in the UK and the United States but also the UAE. He had an overall close connection to the United States and after the end of his assignment, he went back there. Only later was his employment terminated. He had no UK rights.
Similarly, this week the Court of Appeal has held in the case of Creditsights Limited v Dhunna that an employee who chose to move from his employer in London to work at its Dubai office had given up UK employment rights. Although his contract of employment was in English law and he remained on the London payroll as an employee of the UK company, he was paid in US dollars and took up Dubai based insurance benefits. He had given up his UK client base and for a period of two years had focused on the Middle East, working from Dubai. Indeed, in an email to a friend he said he was glad to be leaving the UK and hoped he would never return. The Court of Appeal held that the mere fact that he had an employment contract with a UK company, in UK law, which for administrative purposes was run from London, did not mean he had UK employment rights. He was not working in the UK.
Despite these cases, it would be a hasty employer who decides that someone who is regularly working in the UK does not enjoy employment protection rights. In particular, if that employee is dismissed when in the UK, there may well be in that act of dismissal the making of a ‘sufficiently strong’ connection to UK law.