More than a quarter of a million people emigrated from the UK in
2014. The most popular destination was Australia but other key
destinations were the US, Spain, China and France. Of those making
this major change in their lives a growing number are asking their
UK employers if they can maintain an employment relationship with
the UK business, even though the decision to leave the UK is
entirely the employee's own.
Employers are under no legal obligation to agree to employees
working abroad for personal reasons (unless they have unusual
contracts that require this). But increasing numbers are willing to
do so. After all, if the arrangement can be made to work, there is
no logic in losing a valued employee.
What employers do not always appreciate are the legal implications
of acceding to such a request. An individual living and working in
England under an English law contract for an English company is
clearly going to be covered by English employment legislation. But
what if that individual wants to run the London finance team from
her new home in Melbourne, Australia? Does the individual retain
important rights under employment protection and equality
legislation?
The recent case of Lodge -v- Dignity & Choice in Dying sheds
some light. The UK Employment Tribunal heard the case first and
decided that the employee, Mrs Lodge, was not protected by
employment legislation relating to unfair dismissal and
whistleblowing. The Tribunal found that Mrs Lodge's connection
with Great Britain was not sufficiently strong to entitle her
benefit from this protection. She was an Australian citizen, who
had asked to work in Australia (having originally worked in
London), and who had been paying Australian (not UK) taxes.
Mrs Lodge appealed this decision and the Employment Appeal
Tribunal (EAT) allowed her appeal. The EAT said it made no
difference whether the employer had asked Mrs Lodge to go to
Australia or merely acceded to her request. At the time her
contract ended, she was working for the benefit of the London
business and there were plenty of other factors providing a strong
connection with Great Britain, including the employer's
identity, the terms of the contract and the fact that when she
raised a grievance this was dealt with in London under the English
employee handbook. It was also a relevant factor that it was not in
dispute between the parties that Mrs Lodge could not bring any
claims in Australia.
The case reminds employers that 'virtual employees' can
have just as many rights in the UK -wherever they are based and for
whatever reason - as those physically located here, provided the
connection with Great Britain remains sufficiently strong. In
particular, where an individual is doing work for a business
conducted in Great Britain (as opposed to the global or branch
operations of a British company) this is likely to provide the
required strength of connection.
However, not all individuals working abroad will benefit from
protection and if an employer is particularly keen to sever links
with English employment law, it is possible this can be done in
some cases. We summarised the legal position in an article in 2010,
When do individuals abroad have the protection of
UK employment law and the basic position remains
largely unchanged.
Since that article, the importance of the 'sufficiently
strong connection' test has been given further support in a
number of important cases, up to and including the Lodge case.
However, the facts of each case will differ, which is why it is
important for an employer to decide what it wants the legal
position to be when agreeing to an overseas transfer and to
structure the arrangement to try to achieve the desired result at
the outset.
Also, don't forget other legal considerations when allowing
home working, especially health and safety obligations. To read the
full article please
click here.
For advice or further information, please contact a member of the Withers Employment Group.
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.