UK employment protection legislation such as the Employment Rights Act 1996 and the Equality Act 2010 does not spell out the extent to which employees and workers who work in Great Britain but who may also work abroad or whose employment has a strong connection with a foreign country are protected from unfair dismissal, other detriments or discrimination. The legislation is, as lawyers say, “silent as to its territorial reach”.
The courts and tribunals have developed complex tests to determine such questions including whether those working and based abroad have sufficiently strong connections with Great Britain and British employment law to be treated as working in Great Britain.
In Fuller –v- United Healthcare Service Inc and anor, the Employment Appeal Tribunal upheld an Employment Judge’s decision that, on the following facts, a US Citizen did not enjoy protection from unfair dismissal and discrimination in the UK:
(a) He was a US citizen ordinarily living in Texas, where he shared a home with his partner.
(b) He was employed by a US corporation with a head office in the US.
(c) He spent a lot of time travelling on business to different countries.
(d) His contract of employment provided that any disputes would be dealt with by the American Arbitration Association procedures.
(e) He was on a 2 year assignment to the UK to serve as Managing Director of a UK subsidiary company but the contract provided he would nevertheless be “based” in the US and spend only 49% of his time in the UK.
(f) His salary was expressed in US dollars and his holiday accorded with the US holiday policy.
(g) His US employer paid for his partner to visit him in the UK twice a year.
(h) His US employer was responsible for any income tax in the UK or UAE where he was required to travel on business.
The tribunal found that, in the particular circumstances of the case, Parliament would not have intended Mr Fuller to be protected by UK legislation. There was an insufficiently strong connection with Great Britain and British employment law. The strongest connection was with the USA. His employment in London was substantively connected to and a continuation of his work in Texas. He was informed of his redundancy whilst in the US. He was not in the position of an EU worker from outside Great Britain who could invoke rights under EU law to gain access to UK employment law. Mr Fuller had not given up his base in the USA; he merely carried out some work in the UK and other countries from the UK.
Comment: What is interesting about this case is that most jurisdictional cases, like the Creditsights Ltd –v- Dhunna case discussed immediately below, deal with the opposite situation of a person who originally, or normally, works in Great Britain and is then seconded abroad. The decision might have been different if the employee in this case had moved his home from Texas to London for an indefinite term. HR managers and lawyers should when considering the extent to which they may be protected by UK law, think carefully about the contractual provisions for workers from overseas or who are going to be working overseas.
By David Ludlow
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