Employment International: Who benefits from UK employment law rights?

Whether or not an employee benefits from some or all of our UK statutory employment rights, as a result of working for a UK employer or for an overseas employer but carrying out their duties in the UK, must be considered on a case by case basis. Unfortunately, there is no uniform UK rule which states that all UK employment rights apply to certain categories of employees. There are two critical questions which must be asked by employers seeking to establish what employment rights any given individual may have:

• What is the employment right in question?
• Is the individual entitled under statute or their employment contract to the benefit of it? 

In some instances our statutory provisions do provide a legal test as to who is entitled. One example is the relatively new obligation to auto-enrol employees into a pension scheme. In other instances it is case law which determines who is entitled to what rights.

Circumstances where employees may have UK employment rights

A key UK employment right is the right not to be unfairly dismissed (generally acquired after two years’ service, but there are exceptions). The law is still developing but in short the question our courts will ask is:

“Is the employee’s connection with Great Britain sufficiently strong such that Parliament would have regarded it as appropriate for our courts to hear the claim?”

UK courts have been prepared to identify “categories” of workers who might benefit from the right not to be unfairly dismissed, but unhelpfully these categories have been left open-ended.

Who can claim unfair dismissal in the UK?

Key categories include:

• An employee (from the UK or overseas) ordinarily working in Great BritainAn employee “ordinarily” working in Great Britain will benefit from the statutory right not to be unfairly dismissed. This is a question of fact. An employee on a business trip to the UK is unlikely to be considered as “ordinarily” working here.
• An employee working overseas who:
  (a) Is peripatetic i.e. who travels frequently for work but whose base is the UK (even if they are dismissed overseas). Factors in determining the employee’s base include where the employer’s headquarters are, where travel begins/ends, where the employee lives, the currency in which they are paid and where he or she pays tax.
  (b) Is an expatriate who is working for a British employer operating within what amounts, for practical purposes, to an extra-territorial political or social enclave in a foreign country.
  (c) Has equally strong connection with Great Britain: In Ravat v Halliburton Manufacturing and Services Ltd (2012) the UK Supreme Court held that an employee working on a rotational basis in Libya (28 days working in Libya, 28 days spent on leave in Great Britain) could claim unfair dismissal, despite the employee working in Libya at the date of dismissal. The court considered other factors, including that the employee’s home was in the UK, his salary was paid in sterling under PAYE, HR issues were handled in the UK in accordance with UK HR policies and his contract was subject to English law.

The fact that these categories are not restricted has been amply demonstrated by a recent Employment Appeal Tribunal decision that a “a virtual employee” – an employee whose home was in Australia and who carried out almost all her work for her UK employer from there – could pursue unfair dismissal and whistleblowing rights in the UK (Lodge v Dignity & Choice in Dying (2014).

As mentioned above, employees require two years’ continuous service in order to claim unfair dismissal (with some limited exceptions) but employers should remember that time spent working abroad may count towards an employee’s period of continuous employment.

Who can claim under UK discrimination laws?

Discrimination laws vary widely depending on where you are in the world. For example, in some jurisdictions same sex marriage is a protected characteristic and discrimination on this basis is unlawful. In other jurisdictions, same sex marriage is forbidden and same sex relationships illegal. This makes it very hard to have a global discrimination policy. Thankfully, throughout the EU, the discrimination laws are more unified being national implementations of EU Directives.

However, despite certain protected characteristic being common ground, employers should still ensure they understand exactly what rights their international workers may have and in which jurisdictions they will be protected.

The right to benefit from UK discrimination laws is, again, case law driven and has recently been held to be subject to the same “connection” approach as the courts have established for unfair dismissal. In the case of Fuller v United Healthcare Services Inc, the employee who was based in the US but spent up to 49% of his time in England and Wales was not entitled to the protection of unfair dismissal or discrimination laws here.

However, employers must be wary that workers who are temporarily posted here from another EU member state are very likely to be entitled to protection under our discrimination laws even if their “base” is elsewhere due to requirements under EU law. The same is true of other Directive-acquired rights such as working time and holidays.