EMPLOYING STAFF OVERSEAS – WHAT ARE THEIR EMPLOYMENT RIGHTS UNDER UK EMPLOYMENT LEGISLATION?
The two most significant statutory employment rights in the UK relate to rights under discrimination law (contained in the Equality Act 2010) and the right to claim unfair dismissal (under the Employment Rights Act 1996).
Both pieces of legislation are silent as to territorial scope, i.e the geographical extent to which their protection reaches. However, case law and statutory guidance makes clear that in order for overseas employees to gain protection there must generally be “a sufficiently close link between the employment relationship and Great Britain”.
A recent High Court decision found that the protection against discrimination afforded by the Equality Act 2010 did not extend to Afghan interpreters employed by the British Government to work closely with British military personnel in Afghanistan (R (Hottak and another) v The Secretary of State for Foreign and Commonwealth Affairs & Anor).
The interpreters (and their families) suffered intimidation and death threats as a result of their work, and they left their employment as a result. The British Government offered a scheme to Afghan interpreters which provided those with twelve months’ service the opportunity to relocate to the United Kingdom, subject to conditions.
The Claimants argued that the scheme provided to Iraqi interpreters in Iraq was more generous and therefore the Government had discriminated against them on the grounds of nationality under the Equality Act 2010.
The Court considered the case law on this point and found that the Claimants needed to show a ‘strong connection’ with Great Britain. The Claimants attempted to persuade the Court of a connection by putting forward the following specific factors of their employment: they were line-managed by British personnel, they were the beneficiaries of a policy that insisted upon United Kingdom standards of health and safety, and they worked alongside British forces in clothing which made them indistinguishable from soldiers. However, the Court held that this was far from sufficient. Further, the Claimants’ contracts were not governed by British law and they lived and worked exclusively in Afghanistan.
Pam Sidhu, Head of Employment, comments: ‘The Court recognised the important role that the Claimants played but held that the connections with Afghanistan were stronger than those with Great Britain. Therefore the Claimants were not covered by the UK Equality Act. Claimants who are not based in Great Britain but want to bring a claim against a British employer under UK employment law will generally have to show much more than simply being employed by a British employer. The Court will look at a range of factors, as they did in this case, including to which country income tax was paid, in what currency they were paid, the provisions in the employment contract and where the employee lives and works.
Separately, employers need to be aware that employees may also have rights under their local jurisdiction which may afford equivalent or even greater rights. Employees working in Europe, for instance, will have similar protections to the UK (like discrimination) due to EU wide laws.’