The recent decision of Fuller v United Healthcare Services in the Employment Appeal Tribunal (‘EAT’) has confirmed the test for whether foreign nationals have the right to bring a claim in a UK Employment Tribunal for unfair dismissal or discrimination.
The Employment Rights Act 1996 (‘ERA’) and the Equality Act 2010 (‘EA’) are both silent on their geographical scope although previous case law had provided some guidance. It has been held that the question that should be asked is whether the connection with the UK is sufficiently strong to allow it to be said that Parliament would have considered it appropriate for a Tribunal to deal with the claim. This case has gone into further detail as to what constitutes a connection.
In this case the employee was a US citizen employed by a US company which was itself a subsidiary of a multinational company. The employee was paid in US dollars and the contract stated that any employment dispute would be determined via the American Arbitration Association. In January 2012 the employee was asked to work in a slightly altered role based in the UK and the Middle East. A letter confirmed that Mr Fuller would be working on a rotation basis where he was based in the US but was required to spend 49 per cent of his time in the UK. In October 2012 he was asked to return to the US and subsequently his employment was terminated in January 2013.
Mr Fuller brought proceedings in the UK Employment Tribunal for ordinary unfair dismissal, automatic unfair dismissal for making protected disclosures under the ERA and sexual orientation discrimination under the EA. The Tribunal held that Fuller fell outside the scope of the legislation. He appealed to the EAT which found that Fuller had entered into a contract with an ‘overwhelmingly close connection‘ with the US and the contract had not been overridden by the fact of his presence in the UK.
With regard to unfair dismissal the EAT saw the key question as whether Mr Fuller had given up his base and moved to the UK. Although he had spent a substantial amount of time in the UK this was not held to be the case;
The EAT also gave weight to the fact that Fuller had been called back to the US to be dismissed and that his international role had ended before his dismissal;
The EAT did not agree with Fuller’s argument that the test for determining the territorial scope for discrimination and whistleblowing claims should be less stringent than that for ordinary unfair dismissal.
This is a very fact sensitive area of law but the key factors to focus on are the location where the employee has his base, where he was dismissed, the contents of the contract and any associations with another jurisdiction.