It is becoming more and more common for employees of British companies to work abroad for all or part of their time. This has led to increasing numbers of disputes where the entitlement of employees to bring proceedings in Great Britain has been a key issue. After several years of uncertainty, a workable test for deciding this question is beginning to emerge.
Whether or not a worker is entitled to bring an unfair dismissal or discrimination claim will depend on the degree of the employment’s connection with Great Britain. Recent cases have shown that it will be relatively easy for workers living or working in Britain for at least part of the time to bring a claim in the employment tribunal. It will be harder, but not impossible, for a worker living and working wholly abroad to establish the necessary degree of connection.
It is assumed for these purposes that the employer against whom the claim is brought has some kind of presence in Great Britain and that the claim arises under the Employment Rights Act or the Equality Act. Different issues arise if the employer itself has no connection with Britain, or for less usual claims. Both these topics are beyond the scope of this note.
Workers living or working partly in Great Britain
Although each case has its own unique set of facts, the necessary connection with Great Britain can normally be established relatively easily if an employee continues to live in Britain and is employed under British terms and conditions but commutes internationally. The same applies if the job is split between Britain and abroad, even if the main duties are overseas. Recent cases falling into this category include:
- An international commuter who worked in Libya on a “one month on, one month off” basis, spending his one month off in England.
- A partner in a English legal firm who spent the majority of her time working on a joint venture in Tanzania.
Working living and working wholly abroad
In the case of workers who live and work wholly abroad, the mere fact that their employer is based in Great Britain and they are of British nationality will not be sufficient to persuade an employment tribunal to accept jurisdiction. Something more exceptional will be required, so that their job can be regarded as having a closer connection with Britain than the country where they happen to be working. Recent examples include:
- Wives of British servicemen working for the Ministry of Defence in mainland Europe.
- Teachers at international schools set up under an EU treaty seconded for a fixed term by the Department of Education.
Claims deriving from EU law
It has been suggested in some recent cases that if the claim is based on rights deriving from EU law (for example a discrimination claim under the Equality Act) and the worker has no effective remedy in the country he or she is working, employment tribunals might be obliged to accept jurisdiction even if the tests set out above are not satisfied. However we are still waiting for a definitive ruling from the Supreme Court on this point.
What about other parts of the UK?
The cases referred to in this note were all brought in English employment tribunals. The same rules apply in Scotland and Wales. The position in Northern Ireland, though broadly similar, is outside the scope of this note.