What happened?
The Employment Appeal Tribunal (EAT) recently decided that an Australian citizen, working remotely from Australia for a British company, was entitled to bring unfair dismissal and whistleblowing claims against her employer in the UK.

Mrs Lodge was employed under an English employment contract and worked in London before moving to Australia for family reasons. In Australia Mrs Lodge continued to work for her UK employer remotely using a virtual private network that was installed on her laptop. This continued until June 2013 when she resigned and brought claims for unfair constructive dismissal and whistleblowing in the UK. Initially the Employment Tribunal ruled that it did not have jurisdiction to hear Mrs Lodge’s claims because she was not an “expatriate employee” since she was not posted overseas by her employer but rather chose to move abroad herself, and so had voluntarily taken herself outside of the jurisdiction.

Mrs Lodge appealed the Tribunal’s decision and the EAT ruled in her favour. The judge decided that because all work performed by Mrs Lodge in Australia was for the benefit of her employer in London, she could bring a claim in the UK. The fact that her employer allowed her to work remotely from Australia made her situation no different from that of an employee who was posted to work abroad by an employer. Consequently Mrs Lodge fell into the category of “expatriate worker” and could rely on the protection of UK law.

What does this mean?
Earlier cases have decided that where an employee’s place of work is not the UK, the key question is whether the employee’s connection with the UK is sufficiently strong that Parliament intended for a UK Employment Tribunal to deal with the claim. This decision clarifies the position in relation to remote workers, an arrangement which is becoming increasingly common due to developments in technology. The EAT has made it clear that if these employees are working for the benefit of their UK employer, as opposed to a foreign subsidiary, then they will not lose their right to bring claims under UK employment law, even where they are abroad.

What should we do?
Although the outcome of each case will turn on its facts, multinational employers should be aware that even if an employee is not domiciled in the UK they may pose a litigation risk due to their continuing connection with the UK. Care should therefore be taken before taking any steps which could give rise to possible claims under English law.