Employment Update: Jurisdiction

13 May 2008

Confusion reigns as to which claims can be brought in UK employment tribunals by ex-pat workers

Duncombe and others v Dept of Education and Skills is another case about the rights of employees working outside the jurisdiction - in this case teachers teaching in 'English schools' in other countries.

In Lawson v Serco the House of Lords established that such employees have no right to claim unfair dismissal in UK employment tribunals

However in December 2007 in Bleuse v MBT Transport the EAT decided that such employees do have the right to claim holiday pay under the European Working Time Directive, even though the UK Working Time Regulations apply only to those within the jurisdiction, because otherwise the UK would not be giving proper effect to an EU Directive

Now the EAT has decided that, in order to be consistent with its decision in Bleuse, such employees on fixed term contracts should also have the right to claim that they should be treated like permanent employees (under the EU Fixed Term Workers Directive 99/70/EC), even though they could not do so under the relevant UK regulations (the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002) because they do not work in the UK.

Point to note:

· The EAT has urged the Respondents in this case to appeal to the Court of Appeal on this point because it is clearly unhappy that employees whose statutory rights are based on UK law (eg the right not to be unfairly dismissed) are in a different position from those who can rely on a European directive. We will keep you informed of developments.

Employment Group

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