Those of you with international offices or operations will be familiar with the complexities of determining the appropriate jurisdiction to hear complaints brought by employees working abroad. As a
Those of you with international offices or operations will be familiar with the complexities of determining the appropriate jurisdiction to hear complaints brought by employees working abroad. As a general rule, employees working or based abroad at the time of their dismissal will not be within the territorial jurisdiction of the UK. However, there are exceptions.
The Supreme Court held in Ravat v Halliburton that an exception would apply if the employee had a sufficiently strong connection with Great Britain and British employment law. In Creditsights Limited v Dhunna the Court of Appeal has now confirmed that when determining whether an employee based abroad has a sufficiently strong connection with Great Britain and British employment law, for the purposes of pursuing an unfair dismissal claim, it is not necessary to compare the merits of the different systems of law that might apply.
Mr Dhunna joined Creditsights Limited (CSL) in 2006 working in London as an institutional sales person. His role covered accounts across Europe, Asia, the Middle East and Africa. Mr Dhunna's role developed and, in 2009, he moved to Dubai, transferred his European clients to the London sales team and focussed solely on sales to clients in Asia, the Middle East and Africa. Mr Dhunna was line managed from Delhi, but remained on his English contract and UK payroll (albeit, at his request, he was paid in US dollars).
CSL is part of a worldwide business which is ultimately run and managed by Creditsights Inc. (CSI) in New York. All decisions relating to the Dubai office were taken by CSI which, following legal advice, treated the Dubai office as a branch or representative office of CSL in London. London provided administrative support to the Dubai office but the Dubai office was shown as a separate profit and loss account. It was intended to transfer London's administrative support for the Dubai office to a new office to be opened in Singapore which would be the hub for all Asian business. It was agreed that Mr Dhunna would move to Singapore, would be paid in Singapore dollars and a new contract was prepared.
In mid-2010 administration for the Dubai office transferred to Singapore. However, shortly before he was due to move to Singapore, Mr Dhunna was dismissed for gross misconduct. The decision was taken by employees of CSI and CSL played no part in the dismissal decision.
Mr Dhunna brought claims in England for unfair dismissal, breach of the right to be accompanied and for accrued holiday pay. Mr Dhunna's first two claims were struck out on grounds that the Tribunal did not have jurisdiction to hear them. The ET Judge looked at the facts and concluded that Mr Dhunna was in every sense part of the Asia operation. The Employment Appeal Tribunal overturned that decision finding that ET Judge had failed to compare the strength of Mr Dhunna's connections with Dubai and England. The Court of Appeal reversed that decision holding that the ET Judge had carried out such an exercise and rejected the argument that establishing whether there was a sufficiently strong connection with Great Britain included conducting a comparative exercise of which jurisdiction was more favourable to the employee. The question is whether an employee is able to except himself from the general rule by demonstrating that s/he has sufficiently strong connections with Great Britain and British employment law.
Jurisdictional questions turn on their facts. While this case is further helpful guidance, an assessment will need to be carried out to determine whether in an individual's circumstances the exception applies. If you would like to discuss this further please do not hesitate to contact me or another member of our team.
The Supreme Court held in Ravat v Halliburton that an exception would apply if the employee had a sufficiently strong connection with Great Britain and British employment law. In Creditsights Limited v Dhunna the Court of Appeal has now confirmed that when determining whether an employee based abroad has a sufficiently strong connection with Great Britain and British employment law, for the purposes of pursuing an unfair dismissal claim, it is not necessary to compare the merits of the different systems of law that might apply.
Mr Dhunna joined Creditsights Limited (CSL) in 2006 working in London as an institutional sales person. His role covered accounts across Europe, Asia, the Middle East and Africa. Mr Dhunna's role developed and, in 2009, he moved to Dubai, transferred his European clients to the London sales team and focussed solely on sales to clients in Asia, the Middle East and Africa. Mr Dhunna was line managed from Delhi, but remained on his English contract and UK payroll (albeit, at his request, he was paid in US dollars).
CSL is part of a worldwide business which is ultimately run and managed by Creditsights Inc. (CSI) in New York. All decisions relating to the Dubai office were taken by CSI which, following legal advice, treated the Dubai office as a branch or representative office of CSL in London. London provided administrative support to the Dubai office but the Dubai office was shown as a separate profit and loss account. It was intended to transfer London's administrative support for the Dubai office to a new office to be opened in Singapore which would be the hub for all Asian business. It was agreed that Mr Dhunna would move to Singapore, would be paid in Singapore dollars and a new contract was prepared.
In mid-2010 administration for the Dubai office transferred to Singapore. However, shortly before he was due to move to Singapore, Mr Dhunna was dismissed for gross misconduct. The decision was taken by employees of CSI and CSL played no part in the dismissal decision.
Mr Dhunna brought claims in England for unfair dismissal, breach of the right to be accompanied and for accrued holiday pay. Mr Dhunna's first two claims were struck out on grounds that the Tribunal did not have jurisdiction to hear them. The ET Judge looked at the facts and concluded that Mr Dhunna was in every sense part of the Asia operation. The Employment Appeal Tribunal overturned that decision finding that ET Judge had failed to compare the strength of Mr Dhunna's connections with Dubai and England. The Court of Appeal reversed that decision holding that the ET Judge had carried out such an exercise and rejected the argument that establishing whether there was a sufficiently strong connection with Great Britain included conducting a comparative exercise of which jurisdiction was more favourable to the employee. The question is whether an employee is able to except himself from the general rule by demonstrating that s/he has sufficiently strong connections with Great Britain and British employment law.
Jurisdictional questions turn on their facts. While this case is further helpful guidance, an assessment will need to be carried out to determine whether in an individual's circumstances the exception applies. If you would like to discuss this further please do not hesitate to contact me or another member of our team.