Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

ExpatriatesGlobal HR

More guidance is needed on rights of overseas staff

by Personnel Today 7 Jun 2005
by Personnel Today 7 Jun 2005

Only those employees who are “employed in Great Britain” can bring unfair dismissal claims. This was the Court of Appeal’s conclusion in Lawson v Serco last year, debating the practical effect of the geographical jurisdiction provisions of the Employment Rights Act 1996.

However, the Court of Appeal recently revisited this issue in Crofts & Ors v Cathay Pacific Airways Ltd & Ors. Crofts was one of a number of pilots who brought unfair dismissal claims in the English Employment Tribunal. They all lived in Britain, but were employed by companies in Hong Kong. By the very nature of their jobs, they travelled all over the world, and spent most of their working time outside of Britain.

Six of the pilots had ‘home bases’ in London. By contract, this was the place where their tours of duty would normally start and finish, but this was otherwise substantially irrelevant to their ongoing employment. The other pilots had ‘bases’ in either Hong Kong or New York. As they were all employed by companies based in Hong Kong, their wages were paid into Hong Kong bank accounts, and all of their training, disciplinary and grievance procedures were expressed to take place there too.

The key issue to be determined by the Court of Appeal was whether the tribunal had jurisdiction to deal with the unfair dismissal claims. Taking into account the relevant provisions of the Employment Rights Act (ERA) 1996 and the earlier guidance given in Serco, it concluded by a majority of two to one that the tribunal only had jurisdiction to hear the claims of the six pilots who had home bases in London. It went on to say that the place where the contract based the pilots threw some light on whether they were “employed in Great Britain”, although it did not determine this in itself.

While this case concerned international airline pilots, it is still of relevance to other employers who have staff working overseas. Most of all, it serves as a reminder that determining the rights of such employees is not straightforward, as proven by the judges themselves, who did not arrive at the same conclusion.

Lord Phillips took the view that in light of Serco, none of the pilots should have been able to bring unfair dismissal claims in Great Britain. He believed that Hong Kong law should naturally be expected to apply to the employment of pilots of a Hong Kong airline, who were employed on Hong Kong contracts, and paid and managed in Hong Kong – a sentiment that is difficult to disagree with.

It is worth remembering that the position with regard to discrimination claims is different. With the exception of the Sex Discrimination Act 1975 and the Equal Pay Act 1970 (both of which will be amended in October 2005 to bring them into line with other discrimination laws), the discrim-ination legislation goes further than the ERA , and extends protection to employees working wholly outside of Great Britain if:



  • the employer has a place of business at an establishment in Great Britain
  • the work is for the purposes of the business carried on at that establishment
  • the employee is ordinarily resident in Great Britain at the time they apply for or are offered the employment, or at any time during the course of employment.

It may therefore be possible for an employee to bring a race discrimination claim in this country, even if they are barred from bringing an unfair dismissal claim arising out of the same employment.

This is not the last word on this matter. Serco is due to be heard by the House of Lords. Hopefully, it will provide more practical guidance on what it really means to be employed in Great Britain.

Learning points for HR

Do not assume that just because an employee works abroad they will not have the right to bring an unfair dismissal claim, even if they spend most of their working time outside of this country. A dismissal during a single short absence abroad will not normally exclude an unfair dismissal claim.

Review any contractual documents carefully in light of the Court of Appeal’s observation that where an employment contract ‘bases’ an employee will help to determine whether or not they are employed in Great Britain.

Remember that employees may be able to bring claims in the host country as well. Seek advice from lawyers in the relevant country prior to a dismissal to minimise the risk of claims.

Sue Nickson is partner and international head of employment, Hammonds


Personnel Today
Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
HR jobs in the retail sector at risk
next post
Shortage of offices risks paitient confidentaility

You may also like

Should you let your employees work from abroad?

2 Aug 2022

Netherlands on track to approve working from home...

7 Jul 2022

Brexit remains an ‘open wound’ for EU employees...

23 Jun 2022

UK among worst in Europe for employee engagement

14 Jun 2022

Davos 2022: ‘Invest in social jobs to save...

27 May 2022

Davos hears that ‘wages can rise’ without creating...

26 May 2022

‘It’s International HR Day – wait, you didn’t...

20 May 2022

How the Global Business Mobility visa will overhaul...

14 Apr 2022

H&M signs pledge to protect female workers in...

1 Apr 2022

HR in the 21st century: Tracie Sponenberg talks...

1 Apr 2022
  • 6 reasons why work-based learning is better than traditional training PROMOTED | A recent Fortune/Deloitte survey found that 71% of CEOs are anticipating that this year’s biggest business disrupter...Read more
  • Strengthening Scotland’s public services through virtual recruiting PROMOTED | This website is Scotland's go-to place for job seekers looking to apply for roles in public services...Read more
  • What’s next for L&D? Enter Alchemist… PROMOTED | It’s time to turn off the tedious and get ready for interactive and immersive learning experiences...Read more
  • Simple mistakes are blighting the onboarding experience PROMOTED | The onboarding of new hires is a company’s best chance...Read more
  • Preventing Burnout: How can HR help key workers get the right help? PROMOTED | Workplace wellbeing may seem a distant memory...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+