UK: Supreme Court Guidance On Unfair Dismissal Claims By Employees Working Abroad

Last Updated: 2 May 2012
Article by Richard Isham

In a recent decision, the Supreme Court gives guidance as to when an employee working abroad for the benefit of an employer's foreign subsidiary has a sufficiently strong connection to Great Britain to bring an unfair dismissal claim under English law.

Background

Under English law, an employee has certain rights under the contract of employment, including hours, pay, holidays and notice. In addition, an employee in employment prior to 6 April 2012 who has 12 months' continuous service and an employee employed after 6 April 2012 and who has 24 months' continuous service (both a qualifying employee) has the statutory right not to be unfairly dismissed (section 94(1) Employment Rights Act 1996).

Section 94(1) sets out five grounds, each of which amounts to a "fair reason" for dismissal:

i.Reasons related to the capability or qualifications of the employee for performing work of the kind which he is employed to do.

ii.Reasons related to the conduct of the employee (i.e. misconduct dismissals).

iii.That the employee was redundant (reduction in force).

iv.That the employee could not continue to work in the position which he held without contravention, of his part or on the part of his employer, of a duty or restriction imposed by or under enactment (e.g. health and safety issues for a pregnant employee).

v.Some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

Accordingly, if a qualifying employee is not dismissed for one of the five reasons set out above he/she will have a claim for unfair dismissal as well as a claim for breach of contract, e.g. because the employer has failed to give proper notice.

The case of Serco Limited v Lawson – a conjoined appeal heard by our then House of Lords (now Supreme Court) in January 2006 - identified four types of cases in respect of which an individual employee can benefit from unfair dismissal protection by being able to bring a claim before an Employment Tribunal in Great Britain:

Category 1: Employees ordinarily working in Great Britain at the time of dismissal. It is the factual position which is important not what the contract may say.

Category 2: Peripatetic employees who may move between jurisdictions and be away from their "home" or "base" for weeks or months on end but who can be said to have their home or base in Great Britain at the time of dismissal.

Category 3: Expatriate employees who are posted to work abroad but the fruits of their labour benefits the business carried on in Great Britain e.g. a foreign correspondent for a British newspaper; or an employee who works for a British employer within what amounts to an extraterritorial political or social enclave (e.g. someone who works for a British consulate overseas).

Category 4: Employees who do not fit into the three categories above but who have equally strong connections with Great Britain. Their Lordships could not think of an example that fitted within this category.

The Supreme Court has now given some guidance in relation to the fourth category set out in Serco, in the case of Ravat v Halliburton Manufacturing & Services Limited.1

Facts

Mr Ravat was employed by the British subsidiary of the American parent, Halliburton. He was posted to work in Libya for another Halliburton Group company, based in Germany. He worked 28 days "on" in Libya and had 28 days "off" which he spent in England. He was paid by the UK company in sterling and remained subject to UK tax and national insurance contributions. His lines of report were to managers based in Libya and Cairo, but his personnel issues were handled by the UK company in Aberdeen. His contract was governed by English law.

Following termination of his employment, Mr Ravat brought a claim for unfair dismissal:

  • The Tribunal considered that his situation fell within Category 4 of Serco.
  • On appeal to the Employment Appeal Tribunal it was held that he fell into the definition of "expatriate" employee (Category 3) but, because the fruits of his labours benefited the German subsidiary, not the UK company, he could not bring a claim before the Tribunal in Great Britain.
  • On Appeal to the Court of Session in Scotland the three judges all reached different conclusions: one held "peripatetic" (Category 2), one held "expatriate" (Category 3) and the third "substantial connections" (Category 4); but all held, for different reasons, that Mr Ravat could bring his claim.

Supreme Court decision

The Supreme Court dismissed the company's appeal and held that Mr Ravat could bring his claim before the Tribunal, notwithstanding the fact that he worked in Libya for the benefit of Halliburton's German subsidiary, because the underlying reality of Mr Ravat's situation was that he was employed by a UK employer, paid in sterling, paid taxes and national insurance contributions in Great Britain, spent his time off in England and viewed his home/base as Great Britain and so had a sufficiently strong connection with Great Britain (and, importantly, a much stronger connection to Great Britain than to anywhere else, be that Libya, Egypt or Germany) so as to make it appropriate in all the circumstances for a Tribunal to hear his case. The principles set out in Serco were just that, principles for guidance, not fixed rules.

Comment

If a foreign employer with a subsidiary in Great Britain, wishes to post an employee, employed by the British subsidiary, to work abroad and wishes to avoid the possibility of an unfair dismissal claim on a termination, then careful consideration needs to be given and the arrangement properly documented if the employer is going to be able to defend any unfair dismissal claim on termination of the contract.

Footnotes

1.The decision of Ravat v Halliburton Manufacturing & Services Limited [2012] UKSC 1 is available at http://www.bailii.org/uk/cases/UKSC/2012/1.html.

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.