19 JAN 2015
Claiming unfair dismissal from Australia
Associate, Veale Wasbrough Vizards
Is it possible to choose to work remotely overseas and still benefit from the protection of the Employment Rights Act 1996?
On the facts of Lodge v Dignity & Choice in Dying, the Employment Appeal Tribunal (EAT) decided that it was. Despite working in Australia, Mrs Lodge's employment had a sufficiently strong connection with Great Britain to entitle her to bring unfair dismissal claims in England.
Mrs Lodge began her employment as Head of Finance in 1998. Her role was based in London and her contract of employment was governed by the law of England and Wales. She was permitted to work remotely from her home in London if she wished. However, a few months after her employment began, Mrs Lodge moved to Australia to look after her sick mother. She began to work remotely from her home in Australia with her employer's agreement.
In 2013 she resigned and claimed constructive unfair dismissal, as well as a claim for Whistleblowing. These claims were brought in an English Employment Tribunal (ET).
The ET considered that it did not have jurisdiction to hear her claims as she was not posted abroad by her employer, but rather had chosen to live and work in Australia. As a result, in the ET's view, there was not a sufficiently strong connection with Great Britain for the claim to proceed, she was an Australian citizen, working in Australia and paying Australian taxes. It considered that she should not therefore be protected by the Employment Rights Act or be permitted to bring a claim in the ET.
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Mrs Lodge appealed this decision to the EAT. Her appeal was upheld.
The EAT considered the wider facts. Since moving to Australia, Mrs Lodge had raised a grievance which had been addressed by her company, under the grievance procedure in its staff handbook. The EAT also considered the fact that neither of the parties believed that Mrs Lodge could bring a claim under Australian law. These factors indicated to the EAT that Mrs Lodge did have a sufficiently close connection to Great Britain to bring an unfair dismissal claim.
The EAT also considered that whilst Mrs Lodge had chosen to live and work in Australia, all of her work was carried out for the benefit of her employer based in London.
With today's advancement in technology, employers should be conscious that requests to work remotely may in some cases now relate to working remotely overseas. This case is a noteworthy reminder that although an employee can work remotely overseas by choice, they may still be protected by the Employment Rights Act 1996, and be within their jurisdictional rights to bring employment claims in England and Wales.