Remote and international working arrangements are now common. It is now increasingly normal for employees to work for UK employers while living (either temporarily or permanently) in another country. While such arrangements often operate smoothly in practice, they can give rise to complex issues when disputes occur. A key question is whether an employee working abroad can bring a claim in the UK Employment Tribunal, and these cases are highly fact-sensitive.
For employers and employees involved in cross-border employment arrangements, the starting point should always be a careful assessment of:
1) whether the UK Employment Tribunal has territorial jurisdiction;
2) whether UK employment law applies to the relationship; and
3) whether UK statutory employment protections (for example, unfair dismissal) are available on the particular facts.
Place of work matters, but it is not always decisive
UK employment legislation does not contain a single, comprehensive rule governing when employment protections apply to employees working outside the UK. The tribunals have therefore developed principles to determine whether they have jurisdiction in such cases.
The leading authority is Lawson v Serco Ltd [2006] UKHL 3, where the House of Lords explained that the normal or “paradigm” case is an employee working in Great Britain. In such a case, UK employment legislation will ordinarily apply. However, where an employee works abroad, the position becomes more complex. The fact that the employer is based in the UK is relevant, but it is not enough by itself. Nor is it enough, by itself, that the employee is British, was recruited in the UK or has a contract with a UK company.
The question is whether the employment relationship has a sufficiently strong connection with Great Britain and British employment law.
The “strongest connection” principle
The tribunals often refer to the need for a sufficiently strong connection with the UK.
In Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1, it was confirmed that the place where the employee works is the general starting point, but it is not an absolute rule. The question is whether the connection between the employment relationship and Great Britain is strong enough to justify the conclusion that Parliament intended UK statutory protection to apply. Factors such as working for a UK-based business, being treated as a commuter rather than a full expatriate, retaining UK employment benefits and having a home in Great Britain can all point towards a strong connection. It was clear that the issue is one of fact and degree.
Relevant factors the Tribunal may consider
Indeed, there is no single decisive factor. The Employment Tribunal will usually look at the overall picture, including:
- where the employee physically worked;
- where the employee lived;
- whether the employee was working abroad permanently, temporarily, or on a rotational basis;
- whether the employee was working remotely from abroad by agreement with the UK employer;
- where the employer is based;
- whether the employee was employed by a UK entity or a foreign group company;
- what the contract says about jurisdiction or applicable law;
- where salary was paid and in what currency;
- where tax and social security contributions were paid;
- where HR, disciplinary, grievance and dismissal decisions were handled;
- whether the employee was integrated into the UK business;
- whether the employee had a UK home, base or continuing personal connection;
- whether the employer gave assurances that UK employment law would apply;
- whether the arrangement was genuinely international or essentially UK employment being performed from abroad.
Our experience
In one of our cross-border employment cases, the Employment Tribunal considered whether the employee had a sufficient connection with the UK, despite working remotely from an African country. One of the factors examined was whether the employee owned property in the UK. On the facts, this was treated as an important connecting factor and contributed to the finding that the UK Employment Tribunal had jurisdiction.
This illustrates how fact-sensitive these cases can be. No single factor is determinative; rather, the Tribunal will assess the overall picture.
Conclusion
Whether an employee working remotely from another country can bring a claim in the UK Employment Tribunal depends on whether their connection with the UK is sufficiently strong to bring them within the scope of UK statutory employment protection.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
