There has been a spate of cases this year concerning the rights of overseas employees to bring claims in the Employment Tribunal: a reflection of the increasingly globalised nature of today’s workforce.
If an employee works wholly outside Great Britain he will currently only be able to bring a claim if he satisfies certain conditions, including being “ordinarily resident in Great Britain” either at any time during the course of the employment or when he applies for or is offered it. In Neary v Service Children’s Education & ors the EAT said recently that the Courts could legitimately draw on tax case law to determine what is meant by “ordinarily resident in Great Britain” and held that it is possible to have more than one ordinary place of residence at one time.
The position is likely to become more complicated with the introduction of the Equality Act 2010, as the Act is silent as to its territorial scope. When the bulk of the discrimination provisions come into force on 1 October 2010 it will be for the Tribunals to determine whether they have jurisdiction to hear discrimination claims, depending primarily on the degree of connection between the employment relationship and Great Britain. As the discrimination provisions derive principally from European law the Tribunals will inevitably interpret the Act widely to give effect to these EU-derived rights.
The range of employment issues that arise in the context of employees working overseas will be covered in our breakfast seminar in London on 4 November 2010.