UK: When Do Individuals Working Abroad Have The Protection Of UK Employment Law?

Last Updated: 22 November 2011
Article by Emma Sanderson

In our September 2010 edition of Employment News, we highlighted recent cases on the issue of whether workers who spend some or all of their time abroad can claim unfair dismissal in Great Britain (and other rights under the Employment Rights Act 1996). Since then, we have had first hand experience of this issue in the Employment Tribunal. Before telling you of our experience, and giving you some tips, we will remind you of why this is legally problematic.

Law in theory

There is nothing in the Employment Rights Act 1996 (which sets out the rights not to be unfairly dismissed or to suffer unlawful deductions from wages) that states clearly whether the Act has any effect outside the UK. This leaves a problem – when does the Act protect employees who spend some or all of their time abroad? The House of Lords (now the Supreme Court) looked at the issue in the case of Lawson -v- Serco. The Lords decided that three categories of employee qualify for protection: the employee who is working in Great Britain at the time of his dismissal; the employee who moves around but has his base in Great Britain (the 'base test'); and the employee who works abroad but has a strong connection with Great Britain and British employment law.

The Lords found the third category to be 'rather more difficult' than the others. They said that it would be very unlikely that someone would fall within this category unless he or she worked for an employer based in Great Britain, but this alone would not be enough - 'something more' is needed. They gave a couple of examples of 'something more' and said that any other examples would have to have equally strong connections with Great Britain and British employment law.
At the time of our report last year, two reported cases had considered the meaning of 'equally strong connections'. There has since been a further case, Duncombe -v- Secretary of State for Children, Schools and Families. All three decisions went in favour of the employees, but all were highly dependent on the facts (and it is notable that, in two of them, including Duncombe, there was a strong connection between the employment and the UK Government). However Duncombe, in particular, is important because it is a Supreme Court decision and therefore contains guidance from the UK's highest court.

Law in practice

This year, we have had to apply these cases on behalf of our clients, including one individual who brought a complaint in the Tribunal against his British employer. The individual was of dual nationality (British and another) and he spent significant amounts of time in both countries (amongst others). He had no base, in the sense of nowhere that he identified as his permanent home and/or that he owned or rented in his name, and variously he spent more or less time in the UK and abroad, with family and friends. His job (in sales) was one that, with a laptop and telephone, could be done from any location (except for occasional meetings and conferences).

How did we argue the case for the employee?

As with most cases, this case did not turn on any one fact, although some were arguably more important than others. The employer took the view that by far the most important fact was where the individual spent the majority of his time and it relied heavily on the 'base test' (see above). For us on the other hand, it was important to emphasise all the factors connecting our client with Great Britain, and in so doing we hoped to show a stronger connection with Britain (and British employment law) than anywhere else.

What factors did we point to?

Some of the factors we considered were:

  • Time (work and personal): Where did the employee spend his personal and work time and how could this be evidenced (bills, travel documents, bank account records etc)?
  • Contract terms: What did the employee's contract say, for example about his place of work but also about the law(s) that applied to him? Did his contract differ from the contracts of other staff (especially those abroad)?
  • Business: What was the nature of the employer's business (including its operations overseas), how did the employee fit into that business and with whom did he work?
  • Pay and tax: Where (and in what currency) did the employee receive his salary, and where did he pay tax and social security contributions?
  • Communications: What else had the employer said or done that might have indicated that the employee was to be regarded as a member of its British workforce?
  • Other links: What else was there to evidence either the existence of a link with Great Britain (eg electoral roll, driver's licence, NHS card etc) or the severance of a link with overseas?
    By engaging in this exercise, we successful persuaded the Tribunal that our client had an overwhelmingly closer connection with Britain and with British employment law than with any other system of law, and his claims were allowed to proceed to a full hearing.


In our case, of great interest to the Tribunal was the fact that the individual had a standard UK contract, which was governed by English law and which made various references to English employment legislation, and that the employer had never previously tried to say that the individual was not employed in Great Britain. Indeed, the employer had previously tried to disassociate its business from the country in which it now argued the employee was based. As Lady Hale stated in Duncombe, and as the Tribunal echoed in our case, the law stated to govern the employee's contract "must be relevant to the expectation of each party as to the protection which the employees would enjoy".

A key lesson for any employer with staff who spend time abroad - whether for business or personal reasons - is to take great care in deciding the law and specific terms to be given to those staff and in communicating those terms. If you fail to do so, you could unwittingly find that you help staff secure rights (here or abroad) beyond those that you envisaged they would have.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.