UK: Territorial scope of employment law rights: employees based abroad struggle to show sufficient connection to GB

The Court of Appeal has confirmed that the right to claim unfair dismissal only applies to employees working or based abroad if they can show sufficiently strong connections with Great Britain and British employment law such as to displace the general rule that Parliament did not intend to extend protection to employees working or based abroad. It is not relevant that the system of law available in Great Britain is better or more favourable than that available in the jurisdiction where the employee was working at the time of his dismissal. On the facts the claimant, who had moved to work in Dubai, had insufficiently strong connections with Great Britain, notwithstanding his English employment contract with a company incorporated in England and Wales. (Creditsights Ltd v Dhunna)

In a second case this month, the EAT has upheld a tribunal's decision that a US citizen employed by a US company, who was required to spend around 49% of his working time in the UK, fell outside the territorial scope of unfair dismissal and discrimination legislation (the Employment Rights Act 1996 and the Equality Act 2010). This was because the employee had not given up his base in the US, despite carrying out work in the UK and other countries. He entered into a contract with an "overwhelmingly close connection" with the US, and this contract had not been overtaken by events. The dismissal had been carried out in the US, and the employee's assignment to the UK had finished before his employment was eventually terminated. (Fuller v United Healthcare Services Inc)

The case has been criticised by commentators, particularly in giving the Equality Act a narrower territorial scope than its predecessor legislation (which gave rights to those working partly in Great Britain).  A wider interpretation might also be required by EU law where the claimant is an EU citizen.