The EAT has ruled that an employee working remotely in Australia for a British charity was entitled to bring unfair dismissal proceedings in the employment tribunal. This was despite that fact that she had settled in Australia after an initial period working from the employer’s London office, and only visited the UK occasionally during the rest of her employment.
Rather than setting out new rules for “virtual” employment, the EAT treated the claimant here as a type of “posted” worker, continuing to work for the employer’s UK business despite living abroad. In reality however this case suggests that living abroad while continuing to work for a UK employer is no bar to bringing employment tribunal proceedings where, thanks to the miracles of modern technology, the claimant is able to perform exactly the same job remotely as would be done by an employee physically present in the UK.
Sometimes the dividing lines will be difficult to draw. In this case however, the EAT’s task was made easier because the claimant had been recruited while living and working and London. She had later switched to working from her home in Australia without any other significant changes to her job or the underlying contractual arrangements. It was also clear that the employer, as a relatively small British charity, had no kind of business presence in Australia.
If follows that in the right circumstances, a worker does not need to be physically living here to bring a claim against a British employer, as long as the work can be treated as in effect performed in the UK. It therefore forms an interesting contrast with cases involving international commuters where these variables are switched. The Supreme Court decided nearly three years ago that such workers could still bring claims if their employment was otherwise sufficiently strongly connected to Britain, despite the fact that all their work was done abroad.