Lodge v Dignity & Choice in Dying & Anor

An employee who works remotely abroad solely for an employer’s British operation may remain within the territorial scope of the Employment Rights Act 1996. The decisive question is whether Parliament can reasonably be taken to have intended access to an Employment Tribunal. The territorial analysis is one of fact and degree.

A voluntary move abroad, foreign tax and pension arrangements, and residence overseas do not by themselves remove that protection. Where the employee continues to perform the same role for the London business, remote performance may be equivalent to working abroad on a consensual posting. The absence of a local remedy and the handling of a grievance in Britain are relevant supporting factors.

The claimant had been Head of Finance for the respondents’ London-based operation. With their agreement, she moved to Australia for family reasons and performed her role remotely through a virtual private network. She remained responsible for work benefiting the London operation, while making periodic visits to London.

The London (Central) Employment Tribunal held at a preliminary hearing that it lacked jurisdiction over her constructive unfair dismissal and protected-disclosure detriment claims under the Employment Rights Act 1996. It upheld a separate contractual claim by consent. The claimant appealed the jurisdictional ruling.

The central issue was whether her agreed remote work from Australia placed her Employment Rights Act claims beyond the Employment Tribunal’s territorial jurisdiction.

1. Appeal allowed. The Employment Judge erred in holding that the Tribunal lacked jurisdiction. A declaration was substituted that the Employment Tribunal had jurisdiction to determine the claimant’s claims under the Employment Rights Act 1996.

2. The applicable inquiry was whether Parliament could reasonably be taken to have intended an employee in the claimant’s position to have access to an Employment Tribunal. It is a fact-sensitive inquiry. The illustrations of expatriate employment in Lawson v Serco, [2006] IRLR 289, are not rigid categories.

3. The approach in Financial Times Ltd v Bishop, [2003] All ER (D) 359, was correct: the material question was whether work performed abroad formed part of the employer’s British business or of a separate foreign business. All the claimant’s remote work was for the respondents’ London operation. Her position was therefore materially equivalent to that of an employee posted abroad with consent, notwithstanding that she had initiated the move and became subject to Australian tax and pension arrangements.

4. The Employment Judge should have treated her as within the third expatriate-worker illustration identified in Lawson. Her inability to pursue an equivalent Australian claim, and the fact that her grievance was dealt with in London under the respondents’ procedures, further supported that conclusion.

5. All necessary primary facts had been found. Applying the guidance in Jafri v Lincoln College, [2014] IRLR 544, and Burrell v Micheldever Tyre Services Ltd, [2014] IRLR 630, the EAT did not remit the matter. The statutory claims were to proceed to a merits hearing.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and substituted a declaration that the Employment Tribunal had jurisdiction over the claims under the Employment Rights Act 1996.
• London (Central) Employment Tribunal: At a preliminary hearing, held that it lacked jurisdiction over the unfair dismissal and protected-disclosure detriment claims. By consent, it determined and upheld a separate contractual claim under the 1994 Extension of Jurisdiction Order.