Unfair dismissal and discrimination: UK rights for employees abroad

Employers should not simply assume that staff working abroad will have no UK employment law rights, particularly where the rights derive from EU law and the employment contract is governed by English law.

The Court of Appeal has agreed with an EAT ruling that the wives of MoD personnel working in NATO headquarters in Belgium (who were only eligible for their jobs because of their husbands' roles) were able to bring unfair dismissal and sex discrimination claims in England.

The claimants' connection with Great Britain was sufficiently strong for an unfair dismissal claim.  They were also eligible to bring sex discrimination claims in England despite failing the then statutory test of partly working in Great Britain, given that English law was the proper law of the contract, the employees worked in the EU and protection from discrimination is an EU-derived right. (Wallis v Ministry of Defence, CA)

It had been hoped that the Supreme Court would gives its views on this issue in the case of Duncombe v Secretary of State.  The judgment has just been published and unfortunately the case has been determined on a different point.  The Court did indicate that, had it been necessary to consider the question, it would probably have referred it to the European Court of Justice for a ruling.

It is also worth bearing in mind that the "partly working" test may be satisfied by quite a small proportion of time spent here.  In a recent case, 5% of working time was sufficient given that percentage involved carrying out duties that were an integral part of the job together with compulsory training on essential duties. The content, duration, regularity and importance of the work done here will be relevant. (British Airways v Mak, CA)

Although the Equality Act has replaced previous legislation and has no express territorial provision, the case will still be relevant, as it is likely that tribunals will not wish to reduce the territorial scope from that which applied pre-October 2010.  International businesses that regularly bring employees to Great Britain for central training need to bear in mind that this could give employees rights to claim here, particularly if other work is also carried out while the employees are here.

Our briefing on this case from our Hong Kong office is available here.