UK: Cases In Brief

Last Updated: 7 November 2013
Article by Davenport Lyons

Unfair dismissal - jurisdiction

The EAT have considered a number of jurisdictional issues in the recent case of Dhunna v Creditsights Ltd, which can be summarised as follows:

  • The overarching question is whether Parliament intended that unfair dismissal protection should apply to a person in the claimant's position;
  • The general rule is that the place of employment is decisive in determining jurisdiction for complaints of unfair dismissal;
  • Where the employment has much stronger connections both with Great Britain and with British employment law than any other system of law the claimant will be able to claim unfair dismissal if the connection is sufficiently strong;
  • The comparative exercise is appropriate where the claimant works wholly abroad. The comparison is between Great Britain and the jurisdiction where the claimant works;
  • The country in which the claimant lives is relevant. If he or she lives and works abroad he or she will need to have an "especially strong connection" with Great Britain and with British employment law to be able to claim unfair dismissal;
  • The test of jurisdiction applicable to unfair dismissal claims also applies to claims under section 10 of the Employment Relations Act 1999 (right to be accompanied at a disciplinary hearing);
  • Employees working outside the EU cannot make claims under the Working Time Regulations.

In this case the employment judge had not compared the connections of the claimant with Great Britain and British employment law to the strength of the connections to Dubai, where he lived and worked. The employment judge had also not considered the overarching question identified above, namely whether Parliament is presumed to have intended to give unfair dismissal protection to an employee in the claimant's position. For this reason the case was remitted for a rehearing.


The emphasis in jurisdiction cases is on the comparative exercise; factors pointing to a stronger connection with Great Britain and British employment law are crucial.  However the arguments are refined it remains the case that employees who live and work outside Great Britain will struggle to establish the necessary connection to claim unfair dismissal. For employers who wish to demonstrate stronger overseas connections then matters such as placing the worker on a local contract, paying in a foreign currency into a foreign bank account with line management and administrative support given from another country should be considered.

Unfair dismissal – Acas Code applies to SOSR

The Acas Code of Practice on Disciplinary and Grievance Procedures (the Code) contains provisions designed to help employers and employees deal with disciplinary situations including misconduct and/or poor performance. If an employer is found to have unreasonably failed to follow the provisions of the Code a tribunal may, if it considers it just and equitable to do so, award an uplift of up to 25 per cent on the employee's compensation.

The issues in Lund v St Edmunds School Canterbury were first, did the fact that the employee had contributed to his dismissal mean the uplift should not be applied and secondly, did the Code apply to dismissal falling under the heading "some other substantial reason" for dismissal (SOSR), in this case a breakdown in the relationship of mutual trust and confidence?

As to the first question the EAT held that the fact that the employee had contributed to his dismissal did not justify a failure to apply the uplift. The employee may have contributed to his dismissal but he had not contributed to the employer's failure to follow the Code.

In relation to the second question the EAT decided that the Code could apply to dismissals for SOSR. The Code applies where disciplinary proceedings are, or ought to be, invoked against an employee. In this case the tribunal had fallen into error by focusing on the outcome (the dismissal for SOSR). What was important was that the employee's conduct was called into question (in particular aspects of his behaviour that his colleagues found difficult and unhelpful) and this conduct could have led to dismissal. The disciplinary procedure should have been invoked, even if the later dismissal turned out to be for another reason. (The EAT did express some doubt as to whether the dismissal in this case could be characterised as SOSR.) The EAT remitted the case to the tribunal to consider whether the employer's failure to comply with the Code was unreasonable and, if so, what was a just and equitable amount to award as an uplift.


It is sometimes difficult to say whether dismissal is for the employee's conduct which has led to a breakdown in relations with the employer or if dismissal is for the breakdown itself. If in doubt it is best to err on the side of caution and follow the Code.

Contractual entitlement to bonus payments

We reported in the July 2012 Bulletin that the High Court had decided that over 100 bank employees were entitled to share in a guaranteed bonus pool of EUR 400 million following an announcement made by the bank before the financial crisis in late 2008. (Dresdner Kleinwort Ltd v Attrill).  The bank's appeal to the Court of Appeal has now failed.

The Court of Appeal confirmed the decision of the High Court, holding that the "town hall" announcement broadcast to staff over the intranet did give rise to a binding contractual obligation. In this respect it was persuasive that the promise was made in the context of a pre-existing legal relationship of employer/employee.

The Court also upheld the High Court's decision that the bank's attempt to introduce material adverse change clauses, allowing the bonuses to be reviewed depending on the bank's financial performance, was a breach of the implied term of trust and confidence.

Action points

The Court of Appeal's judgment reinforces the need for employers to exercise caution when making announcements or promises regarding bonuses. Once a promise has contractual effect it cannot unilaterally be taken back or diluted, even if events take a dramatic turn for the worse. Employers should ensure that all verbal communications are made only by authorised employees and are followed up in writing.

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.