An employee who voluntarily moved to Australia and worked there remotely for four and a half years was entitled to bring claims in the UK Employment Tribunal.
In Lodge v Dignity & Choice in Dying and another, Ms Lodge was employed in a senior financial role between February 2008 and June 2013. In late 2008, for personal reasons, she asked her joint employers if she could move to her native Australia and work remotely via a virtual private network. Her employers agreed and, from 1 January 2009, Ms Lodge worked from Melbourne. She paid tax in Australia, became an Australian resident and worked normal office hours in Australia. In mid-2009 Ms Lodge raised a grievance which was handled by her employers in London. After the grievance's unsuccessful appeal she resigned, bringing constructive unfair dismissal and whistleblowing claims in the Employment Tribunal.
The Employment Tribunal held that Ms Lodge was not entitled to bring claims in the UK Employment Tribunal. Ms Lodge appealed.
The Employment Appeal Tribunal ("EAT") overturned the Employment Tribunal's decision. The EAT held that the appropriate test was (a) whether Parliament can reasonably be said to have intended for someone in Ms Lodge's position to have a right to bring a claim in the UK and (b) whether there is an especially strong link between the employment and Great Britain and British employment law.
The EAT held that the examples given by Lord Hoffmann in the earlier case of Lawson v Serco were only examples, not definitive criteria. It was not critical, therefore, that the facts in Lodge's case did not fall precisely into the confines of the examples given in the Serco case. Additionally, the EAT concluded that it was not relevant whether an employee is posted abroad, voluntarily or involuntarily, or the employee makes a request to work abroad, as Ms Lodge had.
The EAT was particularly persuaded by the fact that Ms Lodge had conducted all of her work in Australia for her employer's benefit in London, rather than (for example) her work being for the benefit of a local subsidiary. Effectively this made Ms Lodge a virtual employee of the London-based operation. Additionally, the EAT placed weight on the fact that she had brought a grievance that was handled in London, heard in London and appealed in London. As such, there was a sufficiently strong link between her employment and the UK. The fact that Ms Lodge had no right to bring her claim in the Australian Fair Work Commission (the equivalent of the Employment Tribunal) was also persuasive. The EAT therefore concluded that Ms Lodge was entitled to bring a claim in the UK Employment Tribunal.
Points to note –
The simple fact that an employee works abroad will not, by itself, be enough to prevent him/her being able to bring employment claims in the UK. The circumstances in which an employee will be able to bring a claim now appear to be broader. In future, Employment Tribunals will consider all of the facts of a case when determining whether it has jurisdiction to hear a claim brought by an employee based overseas. Whether an employee chooses to move or is posted abroad by his/her employer does not appear to be a determinative factor. Nor should the factors identified in the Serco case be viewed as definitive Instead, the key factors in deciding how strong an overseas employee’s links with the UK are should include whether they are carrying out tasks for their employer in UK or, alternatively, carrying out a business based in the overseas jurisdiction in which he/she is working.