Fuller v United Healthcare Services Inc & Anor

The territorial reach of the unfair-dismissal and discrimination legislation depends on statutory construction and an assessment of all the circumstances. The employment must have a sufficiently strong connection both with Great Britain and with British employment law.

Relevant matters include the contract, its applicable law, the place where work is performed and the employee’s living arrangements. Work undertaken in Great Britain is important, but it is not conclusive where the employment relationship remains overwhelmingly connected with another country. The same territorial approach applies to dismissal for protected disclosures and to claims under the Equality Act 2010. EU discrimination rights are not engaged merely because some work was performed in the United Kingdom.

A United States citizen employed by a United States company was assigned to work in London for approximately 49% of his time under a two-year international rotation assignment. He retained his United States home, United States contractual terms and salary, and continued to perform international work.

After the assignment was ended and his employment later terminated, he presented claims for unfair dismissal under section 94(1) and automatic unfair dismissal under section 103A of the Employment Rights Act 1996, and a sexual-orientation discrimination claim under the Equality Act 2010.

The Employment Tribunal held, on 9 May 2013, that it lacked territorial jurisdiction. The claimant appealed, contending that his substantial work in London brought the claims within the territorial reach of the legislation and EU law.

1. Appeal dismissed. The Employment Tribunal made findings which it was entitled to make and correctly applied the law to them.

2. The required inquiry was not resolved solely by identifying the place where work was done at dismissal. Following Ravat v Halliburton Manufacturing Services Ltd [2012] ICR 389, the Tribunal had to assess all the circumstances and decide whether the employment had a sufficiently strong connection with both Great Britain and British employment law.

3. The Employment Judge was entitled to consider the claimant’s contractual terms, continuing United States base, living arrangements, the international character of his work, and the circumstances in which the assignment and employment ended. Those matters supported the finding that the employment relationship was overwhelmingly American. The claimant had not given up his United States base merely because he performed some work in the United Kingdom and other countries.

4. There was no basis in the legislation or case law for applying a different or less stringent territorial test to dismissal for protected disclosures under section 103A of the Employment Rights Act 1996, or to the discrimination claim under the Equality Act 2010. Parliament had left the territorial issue, save for specific provision concerning seafarers, to be decided on the facts of each case.

5. EU law was not engaged. Some work in the United Kingdom did not make an employment relationship between a United States employee and employer, which remained substantively connected with the United States, subject to EU law.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal’s decision that it had no territorial jurisdiction over the claims.
• Employment Tribunal, London Central: On 9 May 2013, Employment Judge A Stewart held that the claims under the Employment Rights Act 1996 and the Equality Act 2010 were outside the Tribunal’s territorial jurisdiction.