There has been a steady stream of cases in recent years considering when someone working outside Great Britain will be able to bring an unfair dismissal claim. Last week the EAT considered that issue, along with a related question about whether an employee who was based in Dubai at the time of his dismissal should be able to claim accrued holiday pay under the Working Time Regulations.
In Dhunna v Creditsights Ltd, the claimant was originally recruited and worked in London for an English subsidiary of a US parent company. His contract was governed by UK law. Some 4 years later he relocated to work in Dubai. He was paid in US dollars, focussed on sales to clients in the Middle East, Asia and Africa and reported to a manager in New Delhi, but received back office support from London. When the Dubai office was closed, the claimant was dismissed. He claimed unfair dismissal and accrued holiday pay.
The tribunal upheld the claim for holiday pay in reliance on an earlier decision that said that where a piece of legislation implements EU rights, it has to be interpreted in a way that gives full effect to those rights. In the earlier decision this meant that someone who had worked in Germany and Austria was able to bring a claim in the employment tribunal under the Working Time Regulations despite the fact that the territorial scope of the Regulations is limited to Great Britain.
However, the EAT overturned the decision on holiday pay. The need to give full effect to EU law does not require the Working Time Regulations to be extended to someone living in Dubai. The Working Time Regulations are expressed to extend to Great Britain and there is nothing in the Working Time Directive which states that it is intended to apply to employees working outside the EU. The earlier case related to an employee who was working in the European Union; the principle established by that case did not need to be extended to someone working outside the EU.
The claimant's unfair dismissal case was returned to the employment tribunal for further consideration.