LRD guides and handbook May 2013

Law at Work 2013

Chapter 2

Working outside the UK

With closer ties developing between European states, more workers find themselves working outside the UK. Under the European Posting of Workers Directive 1996, which came into force in the UK at the end of 1999, all workers temporarily working in a EU state have the right to the same statutory minimum terms and conditions as those permanently working in that state.

Employment disputes are brought in the courts of the place where the employee habitually carries out their work, in accordance with the Brussels Convention.

In Weber v Universal Ogden Services ([2002] IRLR 365), the ECJ held that this is the state where the employee has worked the longest, except where the employee had worked in a number of states but had recently settled in one.

A ruling by the House of Lords (now Supreme Court) in January 2006 made it possible for some employees working outside Great Britain to bring claims of unfair dismissal in the UK. The Lords said that, although it is unusual for an employee who works abroad to come under UK law, there are exceptions, such as when an employee is posted abroad for a business carried on in Great Britain, or when someone is working in a British enclave in a foreign country. The basic test is whether the claimant’s connection with Great Britain is sufficiently strong for it to be said that parliament would have expected an employment tribunal to have responsibility for hearing the claim:

Stephen Lawson worked as a security supervisor at an RAF base on Ascension Island, John Botham was a youth worker at Ministry of Defence bases in Germany, and George Crofts was an aircrew member for Hong Kong airline Cathay Pacific who was based at Heathrow.

The Lords held that Lawson and Botham were “expatriate” employees whose work abroad had strong connections with Great Britain, and Crofts was a “peripatetic” employee whose work constantly took him to different places, but whose tour of duty always began and ended in London. All three were entitled to bring their claims in the UK.

Serco Ltd v Lawson; Botham v MoD; Crofts & others v Veta Ltd & others [2006] UKHL 3

Although the Equality Act 2010 is silent as to territorial scope, in Clyde & Co LLP v Bates ([2012] EWCA Civ 1207), the Court of Appeal decided that the same “sufficiently strong connection” test, also applies to discrimination cases.