Whether or not an employee benefits from some or all of the UK statutory employment rights, as a result of working for a UK employer or for an overseas employer but carrying out their duties in the UK, must be considered on a case by case basis. The default position is that the laws of where the worker is posted will apply.
Eligibility to Make a Claim for unfair dismissal in the UK
To make a claim for unfair dismissal you normally have to be employed for at least two years. However, this is not necessary in cases of discrimination (gender, religion, sex etc) or when your dismissal is automatically unfair (whistleblowing, trade union activities, pregnancy, health and safety etc).
Main categories:
- An employee (from the UK or overseas) ordinarily working in Great Britain.
- An employee working overseas who:
- Is peripatetic, namely those employees who spend days, weeks or months working overseas. Relevant factors would include where you have your home, where you are paid and in what currency, and where you are subject to National Insurance.
- Is an expatriate who is working for a British employer operating within what amounts to an extra-territorial political or social enclave in a foreign country.
- Has equally strong connection with Great Britain. Some factors to be considered are if your home is in Great Britain, your salary is paid in sterling after deduction of UK income tax and NIC, you are subject to normal UK pay and pensions, your contract states to be subject to UK law.
Employee vs self-employed: An employer does not have to comply with employment law obligations (whether domestic or foreign) by hiring people on a self-employed basis rather than as employees. However, an employee could be treated or be acting as self-employed while being an employee subject to UK employment laws. The main factor of this test is to look at how much autonomy the individual has during the working relationship.
Eligibility to Make a Claim for Discrimination
There is more flexibility when it comes to discrimination cases. Employers must be wary that workers who are temporarily posted in the UK from another EU state are very likely to be entitled to protection under our discrimination laws even if their “base” is abroad due to requirements under EU law.
If you would like to discuss your case with our English Solicitor of England and Wales Roberto Cantos, please do not hesitate to contact us today.
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