"Virtual Employee" based in Australia has British employment law rights

Our employment team report below on a recent jurisdiction case.

In the case of Lodge v Dignity and Choice in Dying and Compassion in Dying the Employment Appeal Tribunal (EAT) has held that an Australian employee working remotely from Australia, for an English company, has rights to claim unfair dismissal and whistleblowing in the UK.

Because of an increasingly internationally mobile workforce there are increasing numbers of cases about jurisdiction in employment law cases. In this case, Mrs Lodge was an Australian citizen who started work for her English employers in February 2008. Within a year of starting, in December 2008, she moved back to Australia because her mother was unwell. However, she continued to work as her employer’s Head of Finance via a virtual private network installed on her laptop computer. She did return to Great Britain for two weeks for the annual audit and made up to two other visits a year for meetings. Her contract was subject to English law, but she paid tax in Australia and was within the Australian regime for her pension.

Mrs Lodge resigned and brought constructive unfair dismissal and whistleblowing claims in the UK.

In the leading case of Lawson v Serco, the House of Lords held that even if an employee does not actually work in Great Britain the British Tribunals may still have jurisdiction if the employee is “posted” overseas. Although Mrs Lodge was not, strictly speaking, “posted” overseas by her employer, nonetheless, the EAT said that there was a sufficiently close connection between her employment and Great Britain for the British courts to have jurisdiction.

The key feature was that Mrs Lodge was providing her work exclusively for a business in Great Britain, even though this was done remotely while she was based in Australia. Other factors were that Mrs Lodge had no right to bring a claim in Australia and that Mrs Lodge had brought a grievance under the English grievance procedure which had been dealt with in London.

It is not an uncommon feature of modern work practices that employees work remotely. Employers should be aware that if employees are working remotely for the benefit of a business based in Britain, they will normally be protected by the Employment Rights Act 1996.

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