Employees in Great Britain have rights under the Employment Rights Act 1996 not to be unfairly dismissed and not to suffer any detriment for whistleblowing. Can an employee based in Australia working for a British company under a remote working arrangement still seek the protection of these rights under UK legislation? Yes, says the Employment Appeal Tribunal (the EAT) in a recent case.
The employee in question originated from Melbourne, Australia and had worked as a Finance Manager for a not-for-profit company in its London office for ten months. The employee and her family then returned to Melbourne for family reasons. She continued to work for the company on her return to Melbourne under a remote working arrangement but, following a grievance against the company, she resigned and brought claims of constructive unfair dismissal and whistleblowing detriment against the company under the UK legislation.
The EAT considered the guidance from earlier case law on an employment tribunal’s territorial reach. Earlier cases made it clear that the tribunal will have jurisdiction over employees who work outside Great Britain where there is “an especially strong connection with Great Britain and British employment law” to the extent that it can reasonably be taken that Parliament intended for that worker to have the right to bring a claim in a British employment tribunal.
The EAT concluded that the employee’s situation was no different to the case of a worker posted abroad outside Great Britain. The fact that she had chosen to move and work remotely in Australia was irrelevant. All of the work which the employee carried out remotely in Australia was for the benefit of the company in London. They held therefore that she had the right to bring her claims in the employment tribunal.
This is an interesting case on the jurisdictional scope of employment tribunals, although the EAT’s decision may raise some eyebrows given that some of the facts did not suggest a particularly strong connection to Great Britain – the employee did not pay tax or national insurance in Britain, she took up Australian residency and remained an Australian citizen throughout.