UK: The Territorial Scope Of Unfair Dismissal And Whistleblowing Rights

Last Updated: 30 March 2015
Article by Nick Dent

With increasing numbers of employees working in overseas offices, or even working abroad remotely for employers based in Great Britain, the issue of whether overseas employees can access UK employment rights is becoming more and more significant. To bring an unfair dismissal claim against their employer, an employee will need to demonstrate a "sufficiently strong" connection to Great Britain to make it appropriate for a UK employment tribunal to hear their claim.

A number of recent cases have shed further light on this test. The courts will decide if this connection exists by carefully considering all of the features surrounding the individual's employment, particularly whether the employee's work serves the overseas or domestic part of the business. It has recently been confirmed that overseas employees seeking to bring whistleblowing claims must similarly establish that they have a "sufficiently strong" connection to Great Britain.

Recent important decisions

Three cases have recently confirmed and expanded on the "sufficiently strong" connection test. It is now clear that there is no single factor which will dictate whether an overseas-based employee has the requisite connection to Great Britain. In Creditsights Ltd. v Dhunna (2014), a British national working in Dubai for a British subsidiary of a US company was dismissed for alleged gross misconduct. He attempted to bring an unfair dismissal claim in Great Britain. The Court of Appeal confirmed that establishing whether he had a sufficiently strong connection to Great Britain involved a careful consideration of all the facts surrounding his employment. The technical set up of the overseas business, the location of the employee's clients and the way the employee was being paid were identified as pertinent to the extent of the employee's "connection".

This approach can have results which some employers may consider surprising: the courts have held that an employee living and working in Australia had a close enough connection to Great Britain to bring a claim against her employer. In Lodge v Dignity & Choice in Dying & Anor (2014), Mrs Lodge, an Australian citizen, worked as Head of Finance for a British charity under an employment contract governed by English law. Initially based in their London offices, in December 2008 she returned to Australia for personal reasons but kept her job, working remotely via a virtual private network. In June 2013 Mrs Lodge resigned and brought constructive unfair dismissal and whistleblowing claims in England. The Employment Appeal Tribunal (EAT) concluded, having considered all of the features of her employment arrangement, that although she worked in Australia, all of her work was done for the benefit of her employer in London. The EAT said it was immaterial that she was a "virtual employee", not a "physical employee". Mrs Lodge was therefore allowed to bring her claim.

It has recently been made clear that the "sufficiently close connection" test will also apply to overseas employees attempting to bring whistleblowing claims. The case of Smania v Standard Chartered Bank (2014) concerned an Italian living and working in Singapore. His only connection to Great Britain was that his employer's head office was in London. He was dismissed, having made allegations of financial malpractice against his employer, and sought to bring a whistleblowing claim. The EAT found that it was equally important to establish a sufficiently strong connection to Great Britain in claims for whistleblowing as in unfair dismissal claims. It concluded that an employment tribunal here did not have jurisdiction in relation to a whistleblowing claim brought by an Italian

banker living and working in Singapore, because there was not a sufficient connection to the UK, and there was no basis for applying a looser test in whistleblowing cases.

What this means for employers

As more and more businesses adopt flexible and remote working, and with technological advancements allowing more employees to work in overseas offices, employers should keep in mind that such employees may still have recourse to employment rights before an employment tribunal in Great Britain. As Lodge has demonstrated, this is the case irrespective of whether the employee is sent abroad by their employer or chooses to go themselves.

It may seem counter-intuitive that in the case of Lodge, an employee who is physically so very far removed from the UK can bring UK proceedings. However, the decision very much turned on its own facts, focusing on the fact that there was no Australian business and the employee was wholly and exclusively working for the UK business. If there had been an Australian group company to which the employee had been contracted and had supplied even some services, the result in all likelihood would not have been the same, even if they had primarily still been servicing the UK business. This highlights how very fact-sensitive a question it is whether there is a sufficiently close connection to Great Britain. The courts will decide whether an employee can bring a claim on a case-by-case basis, carefully considering all of the facts surrounding the employment set-up.

Employers should therefore think carefully about the arrangements that they have in place for employees working abroad, giving particular consideration to the part of the business an employee is working for. A key consideration is whether the employee works for the benefit of a part of the business based in Great Britain or abroad. It doubtless does not make sense to let the employment jurisdictional issues dictate the working patterns that are adopted – that would be to let the tail wag the dog – but it is important to be conscious of the potential for employees to claim UK jurisdiction in these circumstances and there may be ways of contracting with expats/remote workers which improve the employer's position. As the Smania decision confirms, there is a point at which the UK tribunals will draw the line and refuse to assume jurisdiction.

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.