The territorial scope of the protections available for being unfairly dismissed contained in Section 94(1) of the Employment RightsAct 1996 have been a matter of some contention.
The provisions in Section 94(1) of the Employment RightsAct 1996 relevant to unfair dismissal do not stipulate their geographical scope. As a result, a number of employment cases have been raised which have considered whether employees working abroad are able to bring unfair dismissal claims.
Many of these cases have been based upon the landmark House of Lords decision in Lawson v Serco [2006] UKHL 3 and in particular Lord Hoffman's categorisation of employees. In broad terms these categories were: employees who ordinarily work in Great Britain at the time of the dismissal, peripatetic employees who move between jurisdictions but are based in the UK at the time of dismissal and expatriate employees who have been posted abroad by a British employer to further the business of that employer.
These categories became a useful guideline in determining the right of overseas employees to the protections afforded for unfair dismissal. However, the Supreme Court has now gone beyond these categories and has confirmed that it is not for the courts to lay down fixed rules as to when these statutory protections apply.
In Ravat v Halliburton and Services Ltd, Mr Ravat was a British citizen living in Great Britain but working in Libya for a British-registered company.He worked on a 'month on,month off' rota. In a much anticipated judgement, Lord Hope held that Mr Ravat could bring a claim for unfair dismissal.The Supreme Court found that the starting point in determining jurisdiction is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works.The Supreme Court also emphasised the fact that the question of jurisdiction should be one of "fact and degree" involving an overall assessment of the circumstances, and that those who are truly expatriate will require an especially strong connection with Great Britain before an exception will be made.
This decision will have important implications for all companies who have international employees, and it is advisable to review existing arrangements.An employee who retains strong connections with Great Britain may be able to claim unfair dismissal in the Employment Tribunal, but not always will that be so.The terms of contract were relevant - in this case being made under UK law - and other factors included representations made when the posting occurred, the procedures being in the UK, and paying UK taxes.
These issues will now all become very fact dependent, and steps can be taken now to improve the prospect of avoiding jurisdiction when the employee is working abroad, both in contractual terms, and practical arrangements at termination.Do please contact the team if further more detailed advice on this aspect would assist you.
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