My company wishes to transfer me to their overseas office. Will this affect my employment rights?
It could well do. In general, whether an employee is able to enforce his or her rights in an employment tribunal will depend on the rights the employee wishes to enforce. Recent case laws have made attempts to clear up the position but this area of law remains somewhat uncertain. In brief, the test for territorial jurisdiction will depend on:
Whether the right is derived solely from domestic legislation and whether case law has cast light on the interpretation on the relevant right.
Whether the right is derived from EU law. Generally, if this is case, the domestic statute should, if practicable, be construed in a way which is compatible with EU rights conferred on individuals.
The Supreme Court held that there are four categories of employees who are entitled to claim unfair dismissal under the Employment Right Act 1996:
- Employees who work in Great Britain;
- Peripatetic employees who are based in Great Britain (e.g. pilots);
- Expatriate employees in “exceptional circumstances”; and
- Employees with equally strong connection with Great Britain.
The third and fourth categories concern circumstances where there are factors sufficiently powerful to give the employment relationship a closer connection with Great Britain than any other country’s system of law. Example of such factors include the employer is based in Great Britain, the employment is governed by an English law contract.
Equality Act 2010
The explanatory notes to the Equality Act 2010 state:
"As far as territorial application is concerned, in relation to Part 5 (work) and following the precedent of the Employment Rights Act 1996, the Act leaves it to tribunals to determine whether the law applies, depending for example on the connection between the employment relationship and Great Britain".
The draft Employment Statutory Code of Practice, produced by the Equality and Human Rights Commission provided some guidance on when an overseas employee will be protected by the Equality Act 2010. However, the final version of the ECHR Code only states that discrimination protection in employment is required “when there is a sufficiently close link between the employment relationship and Great Britain.
This area of law on this subject is very complex. If your employer has asked you to accept a post abroad, whether temporarily or permanently, you should consider your position carefully and weigh up the advantages of accepting against the potential loss of your UK employment rights. You should ensure that your service agreement continues to state that your UK employment rights remain un-affected which may offer you some protection, although ultimately it is up to the UK Courts and Tribunal to decide whether or not they have the jurisdiction to hear your Claim.
This information has been prepared by Sykes Anderson LLP as a general guide only and does not constitute advice on any specific matter. We strongly recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of any information or advice given or omitted.