Section 196(2) of the ERA excluded an employee “who ordinarily works outside Great Britain” from the right not to be unfairly dismissed under s94(1). Following the repeal of s196(2) with effect from 25 October 1999, courts were left to determine the extent of the protection for those employees not working in Great Britain at the time of dismissal.
In Lawson, the House of Lords identified the following three broad categories of employees for the purposes of the unfair dismissal legislation:
- the ‘standard case’ - those working in Britain at the time of dismissal, who would be protected unless they were “merely on a casual visit”;
- ‘peripatetic’ employees - protection would also be afforded to those employees who through the nature of their work do not perform services in one particular territory but who are ‘based’ in Britain;
- ‘expatriate’ employees - those who live and work abroad.
In relation to ‘expatriate’ employees, the general rule is that such employees do not fall within the scope of section 94(1) ERA other than in exceptional circumstances. It is not enough that the employer is based in Britain (although this would seem to be a minimum requirement), there must be something more. Two examples of ‘expatriate’ employees who would fall within the scope of section 94(1) ERA were given, together with a suggestion in relation to further examples that might arise:
- a foreign correspondent on the staff of a British newspaper, posted abroad and living in a foreign country for many years but remaining a permanent employee of the newspaper;
- an expatriate employee of a British employer operating within what amounts for practical purposes to an extra-territorial British enclave in a foreign country; and
- finally, it was noted that other examples may exist, but they “would have to have equally strong connections with Great Britain and British employment law".
The ‘standard case’, the case of ‘peripatetic’ employees and the three ‘expatriate’ employee examples make up the five categories being applied by tribunals to determine whether British employment laws apply.