United Kingdom: The Long Arm of UK Employment Laws
Whether or not an expatriate employee continues to have recourse to UK employment rights continues to generate court interest.
The test is a rather subjective – whether or not the employee continues to have a sufficiently strong connection with the UK. As such, it is very much subject to the interpretation of the courts in any one case.
The leading case on the matter is Lawson v. Serco where Lord Hoffman stated that the territorial reach of UK employment laws would be unusual and volunteered that it may well apply when an employee is posed abroad by their employer for the purposes of business carried out in the UK.
A recent case heard by the Employment Appeals Tribunal (EAT) adds further color to the issue. In Lodge v Dignity & Choice in Dying, Mrs. Lodge, an Australian citizen, was employed by a UK not-for-profit charity under an employment contract governed by the laws of England and Wales. She worked in central London for the charity, and occasionally worked from home in West London. A few months after her initial appointment she moved to Australia to look after her mother and requested that she continue her employment. She continued to work for the charity for a number of years from her home in Australia until she resigned claiming constructive dismissal connected to an act of whistleblowing. Mrs. Lodge made the claim under UK law.
The initial employment tribunal considered that the expatriate test laid out by Lord Hoffman did not apply in Mrs Lodge’s case because it was her choice to move to Australia and there was not a particular strong connection with the UK following her exit.
On appeal, the EAT disagreed claiming that a move instigated by the employee rather than the employer is irrelevant and that there was an ongoing strong connection with the UK throughout her time in Australia. The EAT took into account that she could not pursue a similar claim in Australia, the fact that the original grievance was held in London, and also all of her work was done for the benefit of the London operations of the charity.
The case is interesting because as we have all witnessed, technology has altered the dynamics of the world’s workforce and made remote working a real option for many employees. Businesses are often presented with requests from employees to allow them to work in other countries and yet continue to serve that part of the business they have just vacated. On the basis of this recent case, requests from your UK employees should be reviewed with care.