UK: When Can Employees Working Abroad Bring Claims For Unfair Dismissal In Great Britain?

Last Updated: 27 February 2012
Article by Charles Wynn-Evans, Ed Holmes and Emma Richardson

In the recent case of Ravat v Halliburton Manufacturing and Services Ltd the Supreme Court confirmed that whether an employee is entitled to the right not to be unfairly dismissed depends on whether Great Britain is the place with which, in comparison with any other, their employment has the closer connection.

This DechertOnPoint explores the background to the decision in Ravat and summarises the key principles to be drawn from it.

The Background

The territorial scope of British employment law is an important question for employers to consider as they become increasingly international and employees are required to move around the world to service trans-border business. The fact that an employee works outside Great Britain does not necessarily mean that the employment law of Great Britain will not apply. In order to reduce the potential exposure to claims, employers should therefore be aware of the rights to which their international employees are entitled, including the right not to be unfairly dismissed.

Section 94 of the Employment Rights Act 1996, which confers on employees the right not to be unfairly dismissed, is silent on its territorial scope and it has therefore been for the courts to interpret its territorial application. In Lawson v Serco Ltd in 2006 the House of Lords (now the Supreme Court) outlined the following three types of case by reference to which eligibility to claim unfair dismissal is to be assessed:

  • Standard cases – employees working in Great Britain at the time of their dismissal will benefit from the right not to be unfairly dismissed.
  • Peripatetic employees (such as, for example, pilots) – these employees will benefit from unfair dismissal protection if their base is in Great Britain.
  • Expatriate or posted employees (such as those working on a British military base abroad) – these employees are unlikely to benefit from unfair dismissal protection if they work and are based abroad, particularly if their employer is not based in Great Britain. Examples of such employees who may qualify are those working abroad but for a British employer for the purposes of a business carried on in Great Britain, and those working for British employers operating within an extra-territorial political or social enclave.

Subsequently, in Duncombe v Secretary of State for Children, Schools and Families (No 2) in 2011, the Supreme Court noted that the right not to be unfairly dismissed will only exceptionally cover employees who are working or based abroad. It noted that the general principle appears to be that, for such an employee to benefit from the right not to be unfairly dismissed, their employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law. It also noted that there is no hard and fast rule and that it is a mistake to try and "torture" the circumstances of an individual's employment to make it fit into one of the categories outlined in Lawson.

Ravat

In Ravat, the Supreme Court held that an employee who lived in Great Britain but worked in Libya was entitled to claim unfair dismissal in Great Britain because almost all of the factors pointed toward Great Britain as the place with which, in comparison with any other, his employment had the closer connection.

Mr Ravat, a British Citizen who lived in Preston, Lancashire, was employed by a UK subsidiary of Halliburton Inc, based near Aberdeen, until he was made redundant in May 2006. Since 2003 he had been working in Libya whilst continuing to live in Great Britain. His working pattern was such that he worked for 28 consecutive days in Libya followed by 28 consecutive days at home in Preston. Whilst in Libya he carried out work for a German subsidiary of Halliburton Inc. He reported to managers based in Libya and Cairo except in relation to HR issues which were dealt with by his UK employer's Aberdeen office and its HR representative who was based in Libya. Mr Ravat was under no obligation to do any work during the 28 days while he was at home, although he occasionally did a little work which was incidental to his overseas employment such as responding to emails. He received the same benefits, including pay structure and pensions, as UK-based employees except for those benefits that were purely local, such as his car allowance. He was paid in sterling into a UK bank account and he paid UK income tax and national insurance by way of PAYE.

The Supreme Court held that the general rule - namely that the place of employment is decisive in deciding where an employee can bring employment claims - is not an absolute rule and exceptions can be made where the individual's connection with Great Britain is sufficiently strong to show that this can be justified.

The Supreme Court considered that Mr Ravat's case did not fit into any of the three categories identified in Lawson. However, it held that Great Britain was the place with which, in comparison with any other, his employment had the closer connection. The factors pointing towards this conclusion were that:

  • the employer's business was based in Great Britain;
  • the employer chose to treat Mr. Ravat as a commuter meaning that he was entitled to all benefits to which he would have been eligible had he been working in Great Britain;
  • Mr Ravat's employment contract stated that it should be governed by British law;
  • Mr Ravat had been assured by his employer that he would continue to have the full protection of UK employment law following his move to Libya;
  • the documentation given to Mr Ravat indicated that it was the employer's intention that the relationship should be governed by British employment law; and
  • Mr Ravat lived in Great Britain.

Key Points for Employers to Note

Ravat confirms that employees may benefit from the right not to be unfairly dismissed even if their employment situation does not fall easily within one of the three categories set out in Serco. The key test appears to be whether, on the facts, the connection between the circumstances of the individual's employment and Great Britain and with British employment law are sufficiently strong to enable it to be said that it would be appropriate for the employee to benefit from the right not to be unfairly dismissed. Employers should note that this is a question of fact and degree so will always depend on the particular circumstances of an individual's employment. There are, therefore, likely to be circumstances where it will not be easy for employers to be absolutely confident whether or not a particular employee benefits from the right not to be unfairly dismissed.

Importantly, the Supreme Court also noted that employees who are truly expatriate, because they both live and work outside Great Britain, must show an especially strong connection with Great Britain and British employment law to be able to bring employment claims in Great Britain. On the other hand, employees who are not truly expatriate by reference to the approach evidenced in this case, such as Mr Ravat, do not need to show such a high standard of connection to enable one to say that their case was exceptional. Employers therefore need to consider carefully not only whether internationally mobile employees may be able to bring employment claims in Great Britain but also how any dismissal process should best be handled in order to minimise any potential resulting liabilities.

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 Mondaq.com.

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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