Two recent interesting cases have come through the UK Tribunal system addressing issues as to whether an employee working overseas or working in the UK with a foreign employer was entitled to bring litigation in the UK.
In the case of Fuller v United Health Care Services (an EAT decision) the claimant was an American citizen working largely in London for a company incorporated in the US and paid in US dollars. The Claimant had a number of assignments in other jurisdictions but had a rented UK address due to the frequency of his UK centred work.
On termination of employment he brought claims in the UK for unfair dismissal, sexual orientation discrimination/transsexualism and whistleblowing.
In an interesting judgment, Lady Stacey (sitting alone) reconfirmed that each individual case must revolve around its facts and although there is a “checklist” to consider, it is by no means definitive or indicative in each case.
Her Ladyship stressed that the relationship was clearly an American relationship. She went on to state that “Parliament could have provided that all British employment law should extend its reach to any claimant who could show that he worked partly in Great Britain, or it could have provided that part of the Equality Act 2010 applied in that situation. It did not do so”. Therefore in summary the Employment Tribunal were correct in finding that the employment relationship was “overwhelmingly American in nature” and that the work that the individual had carried out in the UK did not alter that in any shape or form.
In a Court of Appeal case (Credit Sights Limited v Dhunna) the claimant was employed by a UK subsidiary of a US company. He started working in London but then moved to the Dubai office and was essentially, in his view, a representative of the London office whilst in Dubai. When dismissed he brought a claim for unfair dismissal in the UK.
The Court of Appeal confirmed that a key consideration as to whether a Tribunal has territorial jurisdiction is the location of work but an employee may still be able to bring a claim if they can show there is a sufficiently strong connection with Great Britain and British employment law. For employees who both live and work abroad this would include a comparison with connections with both locations and this was key in the Court of Appeal coming to its decision in this case.
However the Court of Appeal dismissed the argument that consideration of the correct territorial jurisdiction to proceed in should include a comparison of two legal systems. It is not the case that a claimant can “pick and mix” in terms of jurisdiction or decide which one would give greater recourse to compensation or rights enforcement.