Commuting is no fun, unless you are fortunate enough to work from home, but imagine the plight of the international commuter. Now at least they may have the comfort of knowing that they have employment law protection, as this case shows.
Since 1996, when the territorial restriction was removed from unfair dismissal legislation, there has been a series of cases looking at how far unfair dismissal protection applies to workers who spend all or part of the their time working outside the UK. Two situations were set out in Lawson v Serco  ICR 250 where an employee could claim unfair dismissal while working abroad:
- – employees based in the UK, even though they carry out many of their duties abroad – “peripatetic” employees; and
- – expatriate employees – who both live and work outside the UK – who may be covered by unfair dismissal law in special cases where there is enough of a connection with the UK, for example living in an extra territorial enclave such as a military base or who are posted abroad to work for a UK based business
Are these categories exhaustive, or is it possible for employees working under different arrangements to have UK employment protection? This question of exactly what Lord Hoffman intended his categories to amount to in 2006 has often been debated, but given it was a House of Lords decision this has never been in an authoritative context – until now. In Ravat v Halliburton Manufacturing and Services Ltd the Employment Appeal Tribunal, and a majority of the Court of Session, (in Scotland) thought that the categories are exhaustive, but the Supreme Court has now taken a more flexible view on territorial extent.
The case involved a working arrangement which did not fall within those categories from Serco. Mr Ravat lived in Preston, and worked a pattern alternating 28 days at home, and 28 days in Libya, described by the multinational group he worked for as “commuting”. His employer was a UK subsidiary of a US multinational, and he was paid in sterling by a German sister company. All his work was in Libya, but he reported to managers in Libya and Germany, and his HR contacts were all in Aberdeen.
According to the Supreme Court, the starting point for assessing whether UK law applies is whether the employment relationship has a closer connection to Great Britain than the place where the work is carried out. This includes, but is not restricted to, the exceptions identified in Lawson v Serco, and a wide variety of factors can be taken into account, including:
- – where the employee lives;
- – the nationalities of both employee and the employing company;
- – payment arrangements, including where he is paid and in what currency; and
- – indications given by the employer about what law will apply to the employment.
In reaching the conclusion that there was a strong enough connection with Great Britain in this case, the Supreme Court looked at the often vague realities of employment in multinational groups of companies, commenting that “it is notorious that the employees of one company within the group may waft to another without alteration to their essential function in pursuit of the common corporate purpose” and on how the international aspects of employment law are becoming increasingly important.
While this case dealt exclusively with the application of unfair dismissal, now that the Equality Act 2010 has removed territorial restrictions from discrimination law, the same principles may be used to offer the protection of UK discrimination law to some overseas employees. This is likely to be particularly relevant for those many UK based employees who work regularly in former Soviet states and the Middle East.