Since October 1999, there has been no defined statutory territorial scope for the application of the right to claim unfair dismissal under the Employment Rights Act 1996 (section 94(1)). When determining whether an employee working abroad is entitled to claim unfair dismissal the courts have had to apply the House of Lords decision in Serco Ltd v Lawson. This case identified three categories of employees working abroad who might receive unfair dismissal protection:
- Employees working in Great Britain at the time they were dismissed
- Peripatetic employees who were based in GB
- Expatriate employees who worked or who were based abroad. In this case, only exceptional cases would qualify. These might include employees working for a British employer in an extra territorial political or social enclave; employees posted abroad for the purpose of a business in GB; or employees with a strong connection with GB and British employment law.
In the recent case of Duncombe v Secretary of State for Children, Schools and Families (DCSF) the Supreme Court applied Serco when determining whether Mr Duncombe was entitled to unfair dismissal protection. Mr Duncombe was a teacher employed by the DCSF to work in a European school in Germany. He was employed under successive fixed term contracts and his employment was not renewed when he reached the maximum 9 years employment under regulations limiting the length of employment of seconded staff in European schools.
The Supreme Court held that Mr Duncombe was entitled to claim unfair dismissal. His employer was not only based in GB but was part of the UK government. He was employed under a contract governed by English law, in an international enclave and had no particular connection to the country in which he was working.
The Supreme Court’s approach in this case was expected and applies the principles in Serco in a commonsense way.