Last week’s Court of Appeal decision has confirmed that a sex discrimination claim could be brought by a partner in a legal firm arising out of work she had been doing in Tanzania. However it ruled out a whistleblowing claim on the grounds that she did not satisfy the statutory definition of worker.
The wider interest of the case derives from the comments made by the Court of Appeal about two recent Supreme Court cases where similar questions arose about the scope of the Employment Rights Act. It has clarified that where the claimant is living or working at least part of the time in the UK, it is only necessary for there to be a “sufficiently strong” connection with the UK to make it a claim that Parliament would have regarded as “appropriate” to be dealt here. On the other hand where the claimant is a true expatriate – ie living and working wholly abroad – then there would have to be “exceptional factors” which would displace the “territorial pull of the place of work”.
Putting it another way, while it will ultimately be a matter for the employment tribunal to decide, it should not be too hard for an international commuter to bring proceedings in the UK even if the claim arises out of an incident that happened abroad. Someone working partly in the UK and partly abroad for an employer based in the UK will probably be able to make an even stronger case to launch domestic proceedings.
In this case the fact that claimant was a member of an English LLP, was paid mainly from London and did some of her work there, was regarded as a sufficiently strong connection with the UK. This was despite her spending most of her working time in Tanzania. Furthermore it is implicit in the Court of Appeal’s reasoning that the same considerations apply whether one is dealing with a claim for unfair dismissal or for discrimination under the Equality Act.
The denial of worker status to the claimant in this case did not defeat her claim for sex discrimination because she had a separate right to bring proceedings as a LLP member under the Equality Act. However, subject to any appeal, it makes it clear that LLP membership and worker status are mutually exclusive.