Could British company employees, who choose to work abroad, be protected by English law?
January 27, 2015
(Lodge v Dignity & Choice In Dying and another)
Mrs Lodge, an Australian citizen, was Head of Finance for a British not-for-profit company. Her contract was governed by the law of England and Wales. Mrs Lodge worked in Oxford Street, but also had a VPN (virtual private network) installed on her laptop, which allowed her to occasionally work from her London home. After several months, she moved back to Australia because her mother was unwell, and continued in her role through the VPN. Mrs Lodge resigned from her job in June 2013, and brought constructive unfair dismissal and whistleblowing claims in an English employment tribunal.
An employment judge refused to hear Mrs Lodge’s claims, arguing that she was not truly an “expatriate employee” as defined in Serco Ltd v Lawson and other cases . His reasoning was that Mrs Lodge chose to leave the country rather than being sent abroad to work.
Mrs Lodge appealed to the Employment Appeal Tribunal (EAT). Although the EAT did accept the previous judge’s verdict that Mrs Lodge did not fall within the category of an “expatriate employee”, it was held that her employer had permitted her to work from abroad, which then fell within a sub-category of “expatriate employee” protected by the ERA 1996. This reasoning was further strengthened by the fact that all the work she had undertaken provided benefit to her then employer in London.
There were two other factors that the EAT felt supported this conclusion. Firstly, the employer did not dispute Mrs Lodge’s contention that she had no right to bring her claims in Australia. Secondly, Mrs Lodge had previously bought a grievance case, which was handled in London under the employer’s staff handbook.
Steve Esmond Says: This case does turn specifically on its facts. However, we have a modern working landscape with staff increasingly working from home or conduct work abroad via virtual offices. In this context, employers should be alive to the possibility that staff whose home base moves to a foreign country, may still require or retain UK employment rights.