Employment law- International
The international aspects of UK employment law if you work abroad is a complex issue. There has been a significant amount of case law over the years- which has not always provided a much needed clarity.
In essence, it may be possible for those working outside the UK to have employment rights enabling them to pursue their claim within the UK jurisdiction. Whether or not you have those rights will depend on what exactly you are claiming, where you are based, and the extent of what “workplace connections” you have to the UK.
The point at which the place of work has to be assessed is at the time of dismissal, not when you were originally employed.
The law in more detail.
Eligibility to make a claim for unfair dismissal
Case law has identified 4 categories cases in which an individual could receive unfair dismissal protection, as follows:-
- Employees ordinarily working in Great Britain (at the time of dismissal);
- Peripatetic employees, namely those employees who spend days, weeks or months working overseas. Some examples would be airline pilots or expatriate workers who are posted overseas for extended periods of time. Such employees will be able to make a claim if they are “based” in the UK, but it has not been clearly defined what an “employees base” would amount to. Relevant factors, would, however, include where you have your home, where you are paid and in what currency, and where you are subject to National Insurance.
- Expatriate employees, namely employees who work and are based abroad. This is the hardest category in which to be able to make a claim. The fact that you may have been recruited in Britain by a British employer will not be sufficient in itself. ‘Something more’ will be required, for example, working for a British employer within what amounts, for practical purposes, to an extra-territorial political or social enclave. Being posted abroad by a British employer for the purposes of a business carried on in Great Britain, such as a foreign correspondent on the staff of a British newspaper is a good example.
- Equally strong connection. Those employees who do not fit into the above categories but have ‘equally strong’ connections with Great Britain and British employment law. A leading case on whether an employee’s connection with the UK is sufficiently strong points to some or all of the following factors, which would help you passing the test to claim unfair dismissal in the UK jurisdiction:-
- Your home is in Great Britain.
- Your salary is paid in sterling after deduction of UK income tax and national insurance contributions.
- You are retained on the normal UK pay and pensions structure which applied to other UK-based employees and treated as a commuter under the employer’s international assignment policy.
- Your contract is stated to be subject to UK law and you have been repeatedly assured by your employer that the employment relationship was governed by UK law.
- Human resources issues are handled in Great Britain, including your termination of employment.
Eligibility to make a claim for discrimination
There is slightly more flexibility when it comes to discrimination cases.
UK jurisdiction may apply ‘when there is a sufficiently close link between the employment relationship and Great Britain’.
Where an employee works partly or wholly outside Great Britain, a tribunal might consider:
-where the employee lives and works;
-where the employer is established;
-what laws govern the employment relationship in other aspects;
-where tax is paid;
-other matters it considers appropriate.
Recent rulings have shown that the courts have been willing to extend the territorial scope of British law where domestic employment law gives effect to a directly effective EU right ( such as discrimination law). Therefore the territorial scope of the domestic law should, if possible, be construed widely enough to give effect to the EU-derived right. This is known as the Bleuse principle.
The majority of cases utilising the Bleuse principle, however, has so far involved countries within the European Union. There is no authority yet that the Bleuse principle applies where you work outside the EU.
What is the position for those wishing to come to work in the UK after Brexit?
From 1 January 2021, free movement of people within the EU will end and the UK will introduce a points-based immigration system.
The Home Office has issued The UK’s points-based immigration system: an introduction for employers. It contains guidance on the proposed points-based immigration system, which assigns points for specific skills, qualifications, salaries and shortage occupations. Visas are then awarded to those who gain enough points.