Originally published April 2004
In our November 2003 Employment Update, we discussed jurisdictional issues relating to claims brought by employees who work outside the UK. The article was aptly called "Employment Tribunals go Overseas". Well, they are now coming back.
In the November Update, we mentioned the case of Lawson-v-Serco ,which was in the process of being appealed to the Court of Appeal.
The Court of Appeal recently gave judgement and held that an employee employed by a UK company to work overseas had no grounds to claim unfair dismissal if he did not work in the UK.
The case involved Stephen Lawson, a British man employed by Serco, a Middlesex based company, who was interviewed in the UK, paid in sterling but worked in the Ascension Islands. Mr Lawson never worked in the UK. He resigned in dispute over working hours and claimed constructive dismissal. The Employment Tribunal dismissed his claim for unfair dismissal for lack of jurisdiction. However, the Employment Appeal Tribunal argued that he could bring a claim because Serco carried on a business in the UK. Serco appealed to the Court of Appeal.
The Court of Appeal in Serco took a more back to basics approach saying that in most cases, it would not be difficult to decide whether the employment was in Great Britain. Borderline cases, however, would depend on an assessment of all the circumstances of the employment in the particular case The employee’s residence could be relevant but the emphasis must be upon the employment itself. The Appeal Court, however, made it clear that someone dismissed during a single short absence from Great Britain would not normally lose their protection under the Employment Rights Act. Therefore someone who works partly in the UK and partly overseas could argue that they actually work here. Someone who is working mostly n the UK who is sent abroad for a short period of time should still be covered by the legislation. What, however,is not clear is how long they would have to work overseas before they lose their rights.Mr Lawson is appealing to the House of Lords. Watch this space to see what the House of Lords says.
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Stop Press The Court of Appeal decision in the case of Durant-v-The FSA provided a useful decision for employers in relation to subject access requests made by individuals pursuant to the Data Protection Act. Following that decision, helpful guidance has been released by the Information Commissioner.The guidance suggests that not all data that names or mentions an individual will be personal data. It is a question of focus and whether or not the data affects the privacy of the individual concerned. In addition, far fewer paper records will be relevant to a subject access request, as strict criteria need to met before it is necessary to disclose them. Sejal Raja will explore the Durant decision and the Information Commissioner’s guidance in detail in the June Update. |
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