For many years British courts have been grappling with the question of when British statutory employment rights, such as protection from discrimination contained in the Equality Act 2010, will apply to those who work abroad. This issue is particularly relevant to those universities who employ academics and other staff to work at a foreign campus or in collaboration with international partners based outside of the UK.
A recent Court of Appeal decision has confirmed that a sex discrimination claim could be brought by a partner in a law firm arising out of work which she had been doing in Tanzania. The wider interest of this case derives from the comments made by the Court of Appeal about key Supreme Court cases where similar questions arose. The Court of Appeal has clarified the contrast between two circumstances. On the one hand, where an employee lives and works wholly abroad (i.e. an expatriate) the place of employment will be decisive unless there are “exceptional factors” which makes British employment law applicable. On the other hand, where an employee lives or works at least part of their time in the UK, it is only necessary for there to be a “sufficiently strong” connection with the UK for the Court to conclude that it is appropriate for the claim to be dealt with in Great Britain.
In this case, the claimant partner of the law firm worked principally but not exclusively in Tanzania. Although her work was substantially for the firm’s operation in Tanzania, she was paid mainly from London and did some work in the firm’s London office. It was agreed that she would return to London about six times a year and she would spend approximately two weeks in the UK on each occasion. In the year leading up to her expulsion from the partnership she spent 100 days in London. The Court of Appeal concluded that there was a sufficiently strong connection with the UK and allowed her sex discrimination claim under the Equality Act to proceed.
For British universities this means that, for example, for those academics who are employed and paid by the university but are based and work mainly abroad, they may still be able to bring discrimination claims against the university in Great Britain if, say, they undertake research, teaching or administrative work in the UK for part of their time.
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