A recent ruling of the Supreme Court has made it more likely that employees commuting from the UK to work abroad will be able to bring unfair dismissal claims if their overseas assignment ends.
In this case, the Supreme Court upheld an employment tribunal’s decision to accept a claim from an employee who worked wholly in Libya, but commuted there on a ‘one month on, one month off’ basis from his home in Preston.
It said that the key question was whether the employment relationship had a stronger connection with Great Britain than with the foreign country where the employee worked. As a general rule, if the place of employment is abroad, then the necessary connection with Great Britain will not be strong enough, even if the employer is based in the UK.
But in a case like this, where the claimant was employed under UK terms and conditions, paid UK tax and national insurance, and continued to live in Britain, the tribunal was entitled to conclude that the necessary connection had been established. This was despite the fact that he reported to a regional manager based in Cairo, and supplied services to another company in the same group based in Germany.
Many employers will be unhappy about this decision, because it makes the law in this area more unpredictable.
However, it delivers a clear message that workers based in the UK and commuting to work overseas are much more likely to be protected by UK employment protection rights than British-born expatriate employees, even if they are doing essentially the same job. That may in turn inform employers about how best to staff any overseas part of their operations.
