UK: Overseas Workers and Tribunal Claims

Last Updated: 8 September 2004
Article by Christopher Booth

Originally published September 2004

If workers are employed abroad by a British company, can they make tribunal claims in Britain? As companies expand overseas this question is becoming increasingly important. Unfortunately changes to the law in 1999 created considerable uncertainty and although guiding principles are now starting to emerge from the cases, this is an area where expert advice is usually needed.

Unfair Dismissal Claims

One problem in this area is that different rules apply to different types of employment claim. In unfair dismissal cases the test is whether the employee was ‘employed in Great Britain’ at the time of dismissal (see Lawson v Serco). This test puts the emphasis on where the employee actually works, rather than where he lives, the terms of his contract or his employer’s base.

In the recent case of SSAFA v McClymont the EAT explained that the task of the tribunal when applying this test is similar to that faced when determining whether a particular individual is an employee. This means the Tribunal must 'identify the relevant factors and make an overall judgment as to which side of the line the facts of the particular case fall’. However there will inevitably be difficult cases. One example, described by the EAT as 'right on the borderline', concerned five pilots employed by a Hong King airline but based in London. The case was remitted to an employment tribunal to balance the competing factors and the tribunal’s decision is still awaited.

Discrimination Claims

In discrimination cases the general rule (to which there are exceptions) is that workers can bring claims in Britain unless they work ‘wholly outside Great Britain’ at the time of the alleged discrimination. This rule was considered in the recent case of Saggar v Ministry of Defence which held that a female employee posted to Belfast from 1998 to 2001, who returned to GB for three short training courses during the relevant period could bring a sex discrimination claim in the English employment tribunal. By contrast, an army chaplain stationed in Germany who returned to GB just once during the period in question to conduct a funeral was not able to bring a race discrimination claim.

Practical Implications

In many cases where employees are posted abroad there will be a risk that they can bring employment claims in Great Britain. In practice, as well as complying with the rules of the country where employees are working, it would be sensible to apply British employment standards as well.

Positive Discrimination and the Disability Discrimination Act

Section 6 of the Disability Discrimination Act obliges employers to make reasonable adjustments to enable disabled workers to get or retain jobs. The extent of the duty has just been vigorously emphasised by the House of Lords. Mrs Archibald was a road sweeper who was left unable to walk after an accident. Continued employment as a road sweeper was impossible. By way of adjustment her employer, Fife Council, provided retraining for Mrs Archibald and interviewed her for numerous office jobs (all of which were at a slightly higher grade), but she failed to get any of them. She claimed she should have been given an office job within her competence without a competitive interview. The Council resisted this as their redeployment policy only provided for transfer without interview if the job was at the same or lower grade. It was important to recruit the best person for the job.

The Lords confirmed that the duty to make reasonable adjustments could include transferring the employee to a new job altogether. ‘It may be that in some cases the employer’s duty would require him to move the disabled person to a post at a (slightly) higher grade. It all depends on the circumstances’. Whether it would be reasonable in the circumstances simply to give Mrs Archibald an office job without a competitive interview was remitted to the Employment Tribunal to reconsider and the outcome will be awaited with interest.

Practical Implications

The Lords are interpreting ‘reasonable’ here in a very different way from the ‘band of reasonable responses’ in unfair dismissal law.

Many employers will think Fife Council was acting reasonably, but persuading the Tribunal to take that view will require more than just pointing to a policy of competitive selection.

The case reflects the fact that, unlike other discrimination legislation, the Disability Discrimination Act does not simply aim to provide equal opportunity or a level playing field for disabled people. The rules of the game may have to be altered to give them an advantage.

Do You Need To Know…?

New Employment Tribunal Regulations

New rules of procedure are to be introduced in employment tribunals on 1 October 2004, the same day as the Dispute Resolution Regulations and the revised ACAS Code come into force. Particular points to note include: mandatory claim and response forms are to be used (strictly from April 2005, but sensible to use now); claims will not be accepted unless applicants have, where appropriate, used the statutory grievance procedures before submitting their claim; respondent has 28 days to submit response, but time limit will be strict and extended only if extension is sought before the 28 days expires; default judgment given for applicant if no response entered, there are fixed periods for ACAS conciliation, wider and clearer case management powers for tribunals and parties can be awarded costs to compensate for preparation time.

Guidance on the Information and Consultation Regulations

The DTI has published, in draft, lengthy and detailed Guidance to explain how the forthcoming Information and Consultation Regulations will operate. The Regulations, a revised draft of which is also published, come into force on 6 April 2005 for undertakings with over 150 employees. They will give employees much greater rights to be involved in the running of their Company. Employers affected by the change should be considering whether to take the initiative and enter an agreement on worker involvement before the Regulations come into effect. Such an agreement has many advantages, not least because it allows employers to put in place procedures which are different to and could be less onerous than those set out in the Regulations. For further information contact Tom Flanagan at our London office.

Injury to Feelings and Unfair Dismissal

The House of Lords’ decision in Dunnachie has finally killed off the possibility of compensation for anything other than financial loss in unfair dismissal claims. Awards for injury to feelings can only be made in discrimination cases.

Cases referred to in this update:

Lawson v Serco [2004] IRLR 206; SSAFA Forces Help v McClymont, and others, EAT/0164/03; Saggar v Ministry of Defence EAT/1385/01; Archibald v Fife Council [2004] UKHL 32; Dunnachie v Kingston upon Hull City Council [2004] UKHL 36.

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.

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