If you are working outside the UK, the extent to which you are protected by UK employment law is a complex issue. The legislation does not say anything about the legislative reach of UK employment tribunals and courts if you work abroad. It has therefore been largely left to the courts to determine the issue – which has not always provided much needed clarity.
In essence, it may be possible for those working outside the UK to have employment rights enabling them to pursue their claim within the UK jurisdiction. Whether or not you have those rights will depend on what exactly you are claiming, where you are based, and the extent of what ‘workplace connections’ you have to the UK.
The Law in More Detail
Eligibility to make a claim for unfair dismissal
There have been a number of cases in recent years that have sought to streamline the circumstances where an individual could receive unfair dismissal protection. There are four categories, which are:
- Employees ordinarily working in Great Britain (at the time of dismissal). You will almost certainly have protection here.
- Peripatetic employees, namely those employees who spend days, weeks or months working overseas. Some examples would be airline pilots or expatriate workers who are posted overseas for extended periods of time.
You would be able to make a claim if you are ‘based’ in the UK. It has not been clearly defined, however, what an ‘employees base’ would amount to. Relevant factors would, though, include where you have your home, where you are paid and in what currency, and where you are subject to National Insurance.
- Expatriate employees, namely employees who work and are based abroad. This is the hardest category in which to be able to make a claim.
The fact that you have been recruited in Britain, and by a British employer will not be enough in itself. There would need to be additional factors, for example working for a British employer within what amounts (for practical purposes), to an extra-territorial political or social enclave. This would occur where you are posted abroad for the purposes of a business carried on in Great Britain, such as a foreign correspondent on the staff of a British newspaper or other similar circumstances.
- Equally strong connection. These are employees who do not fit into the above categories but have ‘equally strong’ connections with Great Britain and British employment law. A leading case a few years ago has shed light on some factors that will be taken into account on whether an employee’s connection with the UK is sufficiently strong. These include whether:
- Your home is in Great Britain.
- Your salary is paid in sterling after deduction of UK income tax and national insurance contributions.
- You are retained on the normal UK pay and pensions structure which applied to other UK-based employees and treated as a commuter under the employer’s international assignment policy.
- Your contract is stated to be subject to UK law, and you have been repeatedly assured by your employer that the employment relationship was governed by UK law.
- Human resources issues are handled in Great Britain, including your termination of employment.
Eligibility to Make a Claim for Discrimination
There is slightly more flexibility when it comes to discrimination cases, largely because the right not to be discriminated against initially arises from EU and not domestic law (known as the ‘Bleuse principle’.
The majority of cases utilising the Bleuse principle, however, has so far involved countries within the European Union. There is no authority yet that the Bleuse principle applies where you work outside the UK.
You will still need a sufficiently close link between the employment relationship and Great Britain in discrimination cases.
Philip Landau is an employment lawyer at Landau Law. You can follow him on Twitter @philiplandau
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