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Are employees based abroad but working in GB protected by British employment law?

For tax purposes, his contract stated he must work 49% of his time in the UK & his salary paid in US dollars.

Many foreign businesses have employees working across a number of countries including Great Britain; splitting their time accordingly. Where an employee’s place of work is not exclusively Great Britain, but some time is spent here, at what point will they be protected by British employment law?

Previous case law states employee shall be protected where “the connection with Great Britain is sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for a tribunal to deal with the claim”.

The recent case of Fuller v United Healthcare Services Inc considered whether a US citizen, employed by a US company who spent time working in the UK was protected by British law.

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Facts

Mr Fuller, a US citizen, worked for a US company which was part of the multi-national United Health Group (“the Group”). In addition to his US role, he was appointed as Managing Director of the Group’s UK business and, although based in the US, was obliged to work in the UK and Middle East also.

For tax purposes, his contract stated he must work 49% of his time in the UK. Other key factors were that his salary was paid in US dollars, bonus entitlement, paid time off and holidays were provided in line with US policy (including local statutory holidays in the US), a daily living cost was paid for time spent in the UK, a leased flat was provided in London and the Group agreed to pay for two visits per year for Mr Fuller’s partner to the UK.

Mr Fuller’s “expatriate assignment” was terminated. He was unable to find another role within the Group and was dismissed. Mr Fuller sought to bring claims in an English Employment Tribunal for unfair dismissal, automatic unfair dismissal in respect of protected disclosures and sexual orientation discrimination.

Decision

It was held that the Tribunal did not have jurisdiction to hear his claims.

A key question was whether he had given up his “base” in the US and moved to the UK. Looking at the facts of the case, the Tribunal held that he was very much based in the US and his connection with the UK was not sufficiently strong enough.

Interestingly, Mr Fuller’s dismissal took place in the US because his employer did not wish for him to receive bad news away from home, which the Tribunal considered emphasised his base was the US.

The Judge stated:

“All the circumstances must be considered. These include, but are not limited to, the terms of the contract, the applicable law, the place of performance of the work, and the living arrangement of the employee. Only once these facts have been ascertained can the ET stand back and consider what connection if any there is to Great Britain.”

Comment

This is useful guidance for international recruiters/employers who have employees based in other countries but working in the UK. The factors listed above should give some guidance as to whether British law shall apply (and therefore whether British procedures need to be followed in order to avoid a claim).

Where British employees are posted abroad for the purposes of a business carried on in Britain (e.g. a marketing executive spending a large proportion of time attending meetings abroad on behalf of a British business), then it is likely they shall be protected by the British employment legislation.

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