The question of whether or not someone's employment is sufficiently connected to Great Britain to give them the right to claim unfair dismissal is one which has been much considered over the last decade. Unfortunately, the latest pearls of wisdom on the subject, emanating from the Scottish Court of Session in Ravat v Halliburton Manufacturing and Services Ltd, have done little to provide further clarity.
Section 94(1) of the Employment Rights Act 1996 (ERA) gives employees the right not to be unfairly dismissed by their employer. In the ERA as originally enacted, employees who 'ordinarily worked outside Great Britain' were excluded from the right to bring such a claim. However, this particular provision was repealed in 1999, leaving the ERA silent on the subject of employees working abroad, and whether or not they benefit from the protection of section 94(1).
After a number of cases during which this topic was debated, the House of Lords provided its guidance in Lawson v Serco Limited and other cases. Lord Hoffman held that three categories of employee were entitled to exercise the right under section 94(1) ERA:
- standard cases (where the employee works in Great Britain at the time of dismissal);
- peripatetic employees (where the employee moves between jurisdictions during his or her employment, but can be regarded as having a base in the UK at the time of dismissal); and
- expatriate employees (where employees work and are based abroad, but may bring claims for unfair dismissal due to exceptional circumstances, such as where they have been posted abroad by a British employer to further the business of that employer).
Mr Ravat was a British citizen who lived in Great Britain, but was working in Libya on a month-on, month-off rotational basis at the time of his dismissal. Notably, his salary was paid in sterling into a UK bank account, after deduction of UK income tax and national insurance contributions. He was retained on the employer's normal UK pay and pensions structure. His contract was subject to English law and Mr Ravat had been informed by the company that his employment relationship was governed by English law.
The Court of Session (by a majority) concluded that Mr Ravat qualified to bring a claim of unfair dismissal. However, their Lordships could not agree between themselves as to the correct basis for reaching this decision.
Lord Osborne concluded that Mr Ravat did not fall into any of the three categories set out above, but that he nonetheless had a 'sufficiently strong connection' with Great Britain to qualify for protection. Lord Carloway, on the other hand, took the view that every person who is entitled to bring a claim of unfair dismissal is capable of being 'squeezed' into one of the three categories and although it was not absolutely clear into which category Mr Ravat fell, he was 'more peripatetic than expatriate'. Lord Brodie (dissenting) found that Mr Ravat did not have the protection of section 94(1) ERA.
It is unclear whether Lord Osborne's 'connection' test will be relied upon in the future, or whether the three Lawson categories remain the only good law. The divergence in the three judges' opinions perhaps reflects the wide range of circumstances which apply to those who have a foreign element to their role, and, as such, the difficulty in setting rigid rules in this area.