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Territoriality – Australian claims unfair dismissal in UK tribunal

By - - Employment Law

Can an employee who lives exclusively in Australia, but who continues to work for a UK company, bring a British unfair dismissal claim? Yes, according to the UK Employment Appeals Tribunal in the recent case of Lodge v Dignity & Choice in Dying.

This appeal provides fresh insight into the often complex question of the Employment Tribunal’s territorial reach in cases brought under UK employment law.

Facts

Mrs Lodge was jointly employed by the two respondents; a non-for-profit company and a charity. Both entities operated from their only office, which was located in London. In December 2008, Mrs Lodge relocated to Melbourne. Despite the move, she continued to work for the respondents remotely from Australia. She was able to do this via a virtual private network installed on her laptop, and she worked successfully on this basis until her (allegedly forced) resignation in 2013.

Mrs Lodge brought a claim in the UK for, amongst other things, unfair dismissal but the UK employment tribunal held that she could not continue with her claims due to her residence in Australia.

Appeal Decision

On hearing the appeal, the appeal tribunal allowed Mrs Lodge to bring her claims in the UK, because she had a substantial connection with Great Britain and British employment law. Her employment contract was subject to the laws of England and Wales, and she worked for the sole benefit of her British employers.

Also of relevance was the fact that Mrs Lodge was unable to bring her claim in Australia. Further, she had previously brought a grievance against her employers, which was the precursor to her eventual resignation. This grievance was handled solely in London in accordance with the terms of the UK employee handbook. Her connection to Britain and UK employment law was therefore substantial. Preventing her from accessing the British legal system would have been unjust.

Moral of the story

Multinational employers in particular should continue to be wary of the UK litigation risks from overseas employees who can show that their employment has a substantial connection with the UK.
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