Appeal ruling opens UK employment law to British expats

British expats may be able to use UK employment law following a ruling by the EAT, with potential implications for HR departments.

UK employment law for British expats
British expatriates working for UK companies or organisations abroad could use UK employment laws to pursue claims against their employers following a ruling by the Employment Appeal Tribunal (EAT).The ruling could have far-reaching implications for HR departments at global companies assigning UK nationals to foreign postings, according to lawyers involved in the case.In an article for the Chartered Institute of Personnel and Development, solicitors at Penningtons Manches – a UK law firm headquartered in London – reveal that an expat's strong connection to the UK can override the general rule that the place of work determines the employment law applying to expat workers.The authors – Paul Mander, who heads the employment team at Penningtons Manches, and Martin Tynan – say that a recent case before the EAT raised the question of when a person living and working outside the UK may bring claims under the Employment Rights Act 1996 and the Equality Act 2010.The case involved David Jeffery, who worked for the British Council in Bangladesh as a teaching centre manager and who subsequently brought a claim in the UK for, among other things, unfair dismissal by the council.However, an employment tribunal refused to hear the case because Mr Jeffery was working in a foreign jurisdiction at the time. Case law has established that, as a general rule, the place of work is decisive when determining whether an employee is covered by UK employment law.On appeal, however, the EAT in London overruled the tribunal’s decision, saying that Mr Jeffery had established an “overwhelmingly stronger connection with Great Britain and with British employment law than any other system”.The EAT ruled that, while the tribunal had stated the law correctly, it had not considered a range of factors that ought to have influenced its decision. 

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Those factors included the fact that Mr Jeffery was a UK citizen and had been recruited in the UK to work for a UK organisation; his employment contract stated that it was governed by the laws of England and Wales; that he was entitled to a civil service pension; and that his salary was payable in sterling with a notional deduction for UK income tax designed to maintain comparability with those working at the same level in the UK. The Penningtons Manches authors said, "This case is relevant for UK-based companies with employees posted abroad, often for long periods of time."While the general rule remains that the applicable laws are those of the place of work, this case helpfully outlines some of the features a tribunal ought to consider when determining whether the connection with the UK is sufficiently strong to entitle an individual to bring a claim under UK employment laws, even if he or she is 'truly expatriate'." Pitmans, the law firm that represented Mr Jeffery, said the EAT ruling could impact global employers’ HR policies as several factors established "an especially strong connection with Great Britain".Mark Symons, head of the firm's employment department, commented, "We are delighted the original judge’s decision was overturned and our client will get the chance to explain his claim to the tribunal in Britain which, in the circumstances, is absolutely right."This does, however, set an important legal precedent for employees working for UK organisations abroad and brings into question the need for global employers to review their current practices, contracts and policies."Mr Jeffery's claim for unfair dismissal, whistle blowing detriments and discrimination is now expected to be heard by an employment tribunal either later in 2016 or early in 2017.

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