Can you put a price on love?

JonathanGolden

 

Should you be entitled to damages when no loss has been suffered?

Sometimes an employee has clients who give their work to an employer only because a particular employee works there, and the employer will lose those clients’ custom once the employee leaves.

Sometimes that employee has post-termination restrictions that prevent them from still dealing with those loyal clients after leaving, but they continue to deal with them anyway.

Strictly speaking, the employer has suffered no loss (because the clients would have gone anyway) but there has still been a breach of contract by the employee.

The idea of Wrotham Park damages is to address that situation: where an employee breaches their restrictive covenants, but the employer suffers no loss because of this.

The problem is that this situation is, essentially, a licence to kill (or at least a licence to breach a contract) that sits uncomfortably with upholding a contract and the principle of fair play.

The Supreme Court decided that Spring 2018 was the right time to return to this thorny issue, known as Wrotham Park damages.

In Wrotham Park, the principle of a “hypothetical bargain” or “licence fee” damages was introduced, by which the courts awarded damages based on the price the employee would have negotiated to be released from their restrictions.

This unrealistic and hypothetical after-the-event situation made commercial sense, but was untested and seemed to break the principle that you have to suffer a loss before getting damages.

Recently the Supreme Court, having reviewed this carefully, came to the conclusion that, generally, an employer can only claim for their financial loss.

The Supreme Court was also not prepared to move away from the idea that identifying the value of the loss is essential to an award of damages for breach of contract, but that if the breach by the employee can be shown to damage a valuable asset, or if a protected right is infringed, then “negotiating damages” can be used (an esoteric concept and one that’s likely to be limited to intellectual property and confidentiality rights being infringed by the departing employee).

As a result, an employer will either have to show loss of business or goodwill (which may be impossible) or seek damages based on the gain made by the departing employee by breaching their contract (restitutionary damages – another esoteric concept in employment law).

This leads us to questioning the price of love.

The reason is that, for the moment, an employee with a very loyal personal following can breach their restrictions and can still come out of the situation smelling of roses.

The solution for the employer is commercially romantic, rather than legal:   never allow any one person in your organisation to own the client – companies must ensure that their key clients are looked after by a team of staff interacting with the client at various levels within the organisation; and make your clients love your organisation, not individuals.

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“Mum’s the word…”

JonathanGolden

 

Silent Witness is a TV show where key characters actively search for forensic evidence.  But don’t take this approach in an Employment Tribunal!

I was recently part way through a case where one of my witnesses thought it might be a good idea to find some extra evidence overnight to assist the Judge.  He knew he wasn’t supposed to discuss the case with us or the other witnesses, but didn’t think that he also had to keep mum generally while under oath.  The other side found out what happened and, the next day, the witness received a royal rebuke from the Judge, who made it clear that, when giving evidence, a witness must not speak to anyone about a case.

This particular judge was benign by giving only a warning.  It could have been worse:  claims by a Ms. Chidzoy against the BBC for whistleblowing and sex discrimination were struck out entirely when it was found out she had discussed her case with a journalist during a break while  still giving evidence. The Employment Tribunal weren’t interested in what had been discussed; it was the mere fact that she had discussed her case was enough for it to conclude that her conduct was unreasonable.  And that was the end of that.

This is part of the wider issue that, when under oath, witnesses must do what a court or tribunal orders, and answer truthfully any questions put to them.  Not doing this is contempt of court.  In fact it was reported recently that a Mr. Atwal, a DJ from Birmingham, who had claimed that his career had been destroyed by medical treatment in 2008 and wanted damages of £837,109 for loss of future earnings and the need for care, was lying, as his music videos showed.  Having done so, he is now facing a possible 2 year jail sentence.  Another case in 2016 related to a juror who did some online research about a defendant and shared the results not evidence before the court) with other jury members, resulting in the case being abandoned; he was sentenced to 9 months’ jail, suspended for 12 months.

The reality is that, in any case, people have different versions of the same story.  A court or tribunal then has to decide who to believe.  There’s always a risk that a judge thinks that evidence given is a lie (i.e. contempt of court – which is itself punishable).  For this reason, judges will say they “prefer the evidence of A rather than B”, and if they feel B was being misleading, may add that they found B to an “unreliable witness”.  Elegant, but effective.

Getting back to the TV show, last minute forensics are not the way to succeed in litigation: cases are won by getting the evidence right long before going to court or tribunal, and then giving truthful evidence under oath and taking care not to speak about a case while under oath (which can make a weekend seem like a very long weekend).

Being a Silent Witness can be tough.

Modern Slavery – your employer obligations

WynLewis

 

Slavery exists…

… despite its abolition by the Slavery Abolition Act 1833 and other legislation in the 19th century (most of which has since been repealed and replaced with its modern equivalent in the form of the Human Rights Act 1998, which prohibits slavery).

Of course modern slavery is different from the type of slavery that was abolished more than 180 years ago: ownership of people as chattels is hardly a live issue in modern Britain, although detecting and preventing the exploitation of people as workplace commodities remains an issue that exercises many people in an increasingly connected world.

So why is this post relevant now?  It’s because, in March 2017, we’re approaching the first full year (ending on 31 March 2017) in respect of which the requirements of the Modern Slavery Act 2015 (the “MSA”) have to be met by large commercial organisations.

Is your organisation successful enough to have to care?  The MSA applies to organisations that carry on business in the UK and have a global turnover of more than £36m per annum.  It requires you to prepare, sign and publish prominently an annual slavery and human trafficking statement for each financial year ending on or after 31st March 2016, stating what you have done (or not) to ensure that human trafficking isn’t happening in your supply chains or business.

But (in the same way as with the Gender Gap Reporting Regulations – see my blog here) there’s no formal sanction for not making a statement.  That said, drivers such as CSR, reputation, brand and employer-of-choice are bound to result in organisations doing what is required by the MSA.  Also the Government can get an injunction requiring compliance and if this is ignored it can give rise to an unlimited fine for contempt of court, for which individual directors may be liable.

The statements that are published will make for interesting reading.

I’ve prepared a more detailed analysis of the MSA on the Cube at Cubism Law, of which Golden Leaver is now a part.

Got a Gender Pay Gap?

WynLewis

 

At last – something that’s NOT about Brexit:  the Gender Pay Gap Regulations

It’s time to stop ignoring what private sector organisations with 250 or more staff must do after the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 come into force on 6th April 2017.

Although the fact of a gender pay gap may not be rocket science, what’s interesting is that the gender pay gap isn’t a one-way gap.  Apparently it falls to about 9% for full time employees; it reverses to minus 6% for part time workers (where women tend to earn about 6% more than men); and it falls to quite a small % when men and women in their 20s and 30s are compared.  But remember that a gender pay gap isn’t an equal pay gap (which is unlawful if men and women are doing the same job).  Instead it’s an analysis of different rates of pay between men and women.

Three pieces of data have to be collected.  These are (1) the employer’s gender pay gap % as at 5th April in a particular year; (2) the organisation’s gender pay bonus gap over the last 12 months; and (3) the proportion of male and female staff who received a bonus in the same 12 month period.  This data then has to be available on the employer website for 3 years and on a government website.  Explanations for the reasons for any gap or of work being done to close the gap are encouraged.

Pay includes the gross monthly (if paid per month) or weekly (if paid per week) amount of basic pay, bonuses, allowances, holiday pay and shift premiums, but excludes overtime, expenses, benefits in kind, the value of salary sacrifices and payments made on termination of employment.

There are no sanctions (not yet) for not complying with the reporting obligations.  But there will probably be some effect on employers who routinely tender for public sector work and need to comply with procurement requirements that may favour tenderers with a smaller gender pay gap.  There may also be forum shopping by employees who choose to work for “employers of choice” that make a virtue of equal pay and of diminishing any gender pay gap: the name and shame game.

Some people think that, for the time being, the benefits of these regulations will be felt more by statisticians and accountants than the individuals who are at the lower end of any gender pay gap.

If you’re interested in more information then take this short cut to another blog about this in the Cube updates of  Cubism Law, of which Golden Leaver is now a part.

 

BREXIT = Bregulatory Meltdown?

WynLewis

 

We’re in a post-BREXIT employment law New World Order…

For some time now, the Government has been operating what’s known as the “one in, two out” regime when introducing new regulations.  People often think this means that for every new regulation to become law, two regulations must be abolished.

It’s not as simple as that.

In practice it means that, where there’s a need for a new regulation, and where there’s a cost to business of complying with that new regulation, the Government has to remove or modify existing regulation(s) to the value of £2 of savings for every £1 of cost imposed.

The regime came about as a result of businesses complaining about the time and cost of complying with the complexity and number of new regulations.  But, whilst the regime could mean the introduction of more (less costly) regulations, it’s resulted in fewer regulations overall.

So imagine the joy that businesses and Government might experience when EU-derived legislation and associated regulations melt away post-BREXIT!

Or not.

This is the thing:  much of the UK’s legislation, though deriving from EU directives, works well and matches current social trends and is likely to remain in place and/or influence our home-grown laws for some time to come.  So getting rid of this “good stuff” would be a retrograde step from the perspective of having a better society.  There’s also a certain amount of EU legislation that was already law in the UK before it became subsumed into EU law at a later date.  So we would probably want to retain that anyway.

In reality the range of EU-derived employment legislation is broad and includes agency regulations, collective consultation, discrimination, diversity and equality rights, family leave, TUPE and working time (including minimum holiday entitlements – the UK’s entitlement is actually more generous than required by EU law).  And although many aspects of these laws are unpopular, some of them have brought certainty (the service provision changes under TUPE) and a better deal socially (note that shared parental leave is a local, not an EU provision).

But what if, post-BREXIT, the Government imposed (even more of) a shock on business of having to deal with a sudden, fundamental change in the law by repealing everything EU-related…?  It would be too much.  Also we all (probably) recognise that, in order to access a free(ish) market, there will be a need to preserve certain minimum employment protection regimes.

So instead, the Government will take a drip-feed approach.  For that reason, the quantity of employment law likely to vanish is small; but our labour laws may approach Canada, Australia and New Zealand – independent trading nations we will now have to model ourselves on.

What are the candidates for being kicked out or changed?  Here are some that might be considered:

–       the right to accrue holiday when off sick?  Kick out entirely.

–       the whole of the agency worker regulations?  Kick out entirely.

–       the ban on capping bonuses in the financial sector?  Kick out or modify.

–       no cap on discrimination compensation?  Kick out and mirror the unfair dismissal cap.

–       no cap on whistle blowing compensation?  Kick out and mirror the unfair dismissal cap.

–       the right to carry over unused holiday entitlement for 18 months?  Kick out or modify.

–       ban harmonising terms and conditions after a TUPE transfer?  Modify to allow this.

Whatever happens, it won’t be immediate.  The two-year post-Article 50 negotiation period is probably only the beginning of the period before laws and regulations start to be changed – and even then the new BREXIT regime is likely to look pretty similar to the current regime.

So keep calm and carry on…

…but remember as well the effect on employment rights of not having free movement of people to do your work – have a look at my earlier BREXIT blog on this here.

 

Feeling furtive?

WynLewis

Private emails at work – the latest twist

Furtive” is how many employers feel when they look at the private emails of a staff member who is the subject of a disciplinary investigation.

The reason is the tension between an employer’s wish to check on what their employees are doing, and what those employees regard as their right to privacy,  even when using a work-related email account for private messaging.

This tension was illustrated by the recent case of – Barbulescu v Romania  which shows that the position is still not crystal clear.

The story went like this:

–  Mr Barbulescu was dismissed for personal internet use at work, contrary to the employer’s strict rule against any personal use of its systems;

–  as part of its investigation, the employer accessed intimate messages sent by the employee to his fiancée and to his brother;

–  these messages were printed by the employer and used in the disciplinary proceedings as well as in Mr Barbulescu’s subsequent court challenge;

–  the Romanian courts held that Mr Barbulescu’s dismissal was lawful (it found the employer was entitled to check that work was being done properly and that Mr Barbulescu had been given notice of the rule against personal use of company resources and that surveillance would occur);

–  the European Court of Human Rights also held that the monitoring of Mr Barbulescu’s internet usage and the use of the Yahoo! messages in disciplinary proceedings was a proportionate interference in his “Article 8” rights.

The media:

–  interpreted this as a further encroachment on to workplace rights; and

–  gave the (misleading) impression that the decision gave employers carte blanche to snoop on employees’ personal emails.

They were wrong.

In fact the legal position is like this:

–  Article 8(1) of the European Convention on Human Rights states that “everyone has a right to respect for his private and family life, his home and his correspondence“;

–  this is a right to communicate (which means by letter, email and phone call) without interception or screening by a third party and amounts to a reasonable expectation of privacy;

–  but that right (and that expectation) vanishes if interference (1) is in accordance with the law, (2) is necessary in a democratic society, and (3) is in the interests of national security, public safety or the economic well-being of the country; for the prevention of disorder or crime; for the protection of health or morals; or for the protection of the rights and freedoms of others;

–  so there’s a lot of scope for sensible and proportionate (and lawful) monitoring – and, provided that the safeguards in the various guidelines set out in the data protection codes of practice for monitoring are followed – there should be no problems;

–  this is why the law is framed as a right to respect for privacy, not a right to actual privacy;

–  and in this case, the interference with Mr Barbulescu’s Yahoo! emails was appropriate, given the need to balance an expectation of privacy against an employer’s wish to verify that employees are working during working hours.

But what about real life?

–  isn’t a blanket ban on all personal internet use at work excessive?

–  how can people juggle longer working hours with outside activities if there is no “down time” to deal with those outside activities?

–  smartphones make personal use of the employers’ systems less of a necessity (and make monitoring of their workplace activities by employers harder);

–  the BYOD trend is leading to an even greater blurring between the private and the professional in many workplaces.

Pulling this together:

–  you can monitor workplace communications;

–  but you have to do it in a reasonable and balanced way;

–  any monitoring is unlikely to be reasonable or balanced if you haven’t warned your employees in advance what you may be doing;

–  so it helps (a lot) to have a policy in place that says what you’re entitled to do and what you will do if a need to monitor arises.

Whether governments abide by the laws they impose on their individual and corporate citizens is, of course, a different issue.

When is a decision to make redundancies not a decision?

WynLewis

Collective redundancies just got more complicated… again.

It’s a shame, because they had become simpler after the Woolworths case confirmed that you only have to focus on establishments within a business (rather than on a business as a whole) when deciding whether to consult collectively in a redundancy situation.

Problem:  the trigger point for when an employer has to start consulting about collective redundancies may have been brought forward to a time that many employers would regard as being no more than an in-principle (not a final) decision. This brings uncertainty.

Facts:  the E. Ivor Hughes Educational Foundation operated a girls’ school. Due to a projected decline in the number of pupils, it was decided in February 2013 to close the school unless numbers increased. Due to the subsequent actual decline in the number of pupils, it was decided in April to close the school at the end of the 2013 summer term. All 24 staff were then given notice of dismissal on 29 April (4 days after the decision to close the school had been taken) to expire on 31 August. No collective information or consultation was carried out (apparently the Foundation had taken no legal advice and so didn’t know about the need to consult). The staff then brought claims for a Protective Award for failing to consult and won the maximum 90 days’ compensation. This was costly for the Foundation, whose appeal against the Protective Award failed.

Issue:  you might be forgiven for thinking: “Serves Them Right”, given that dismissal notices were served only 4 days after the decision to close had been given; and given also that the Foundation apparently took no legal advice. But the issue is this: should the Foundation have started consultation in February 2013 (when they took an in-principle decision to close the school if pupil numbers remained low); or could they have waited until April (when their in-principle decision was converted into an actual decision) before starting consultation?  Supporting this proposition are the follwoing points:  (1) an in-principle decision about having to make redundancies was only speculative and fell well short of the need to “propose” redundancies (the UK legislation trigger – which is more specific than the comparable EU legislation that refers to the broader need to “envisage” redundancies); and (2) the trigger for having to consult collectively should have been activated only after the need to make redundancies changed from being speculative to definite (when there would have been at least half a chance of avoiding liability for Protective Awards if dismissal notices had been delayed for 30 days’ consultation).

Judgment:  the Tribunal accepted that the final decision to close the school was deferred to April 2013, but that a decision had already been taken in February that, unless pupil numbers improved, the school would definitely be closed; and that this conditional decision amounted to a proposal to dismiss (because even though it was less than an actual decision, it was more than a possibility and compelled the School to plan for collective redundancies) that triggered the need to consult collectively. The Tribunal also decided that there were no special circumstances (such as the adverse effects on the school and on pupil numbers of a “leak” of its parlous state) that would have made consultation impractical (which would have reduced or diminished the Protective Award). All of these findings were endorsed by the Employment Appeal Tribunal.

Lessons:  when faced with the possibility of 20 or more redundancies either (1) make sure that no decision is made (whether an actual decision, or a conclusion that would have the effect of you acting in the same way as if a decision had been made), or (2) start the consultation process immediately (however vaguely and for at least the minimum 30 or 45 days) because criticism of your transparency will be cheaper than a Protective Award.

Collective Redundancies and the Ghost of Woolworths

WynLewis

Finally we have (almost) official confirmation that the 20+ trigger for collective redundancies isn’t relevant until the number of redundancies at individual sites each meets that threshold.

But as the Ghost of Woolworths exits stage left (no doubt muttering “Collective redundancies – to consult, or not to consult: that is the question”) – is the farce over?

Possibly not…  So it may just be sensible to summarise what an employer needs to know when deciding whether to inform and consult individually or collectively:

The legal bit:  if you’re contemplating 20 or more redundancies at one establishment (think of it as a “unit”) over a 90-day period, you have to inform and consult collectively (with employee representatives) for at least 30 (and sometimes 45) days before the first redundancy takes effect.

The facts:  six or so years ago, Woolworths went into administration and closed all its UK stores.  There wasn’t any consultation and about 25,000 staff brought claims for protective awards (for failure to consult).  The Employment Tribunal followed the one establishment test and found that staff who worked at shops with 20 or more staff should get an award, but that staff who worked at smaller shops shouldn’t.  But the Employment Appeal Tribunal (“EAT”) weighed in and applied the 20+ test to the entire undertaking (i.e. it lumped all of the Woolworths shops together).  This meant that all of the staff should get a protective award.  This has caused major problems for multi-site employers, who had previously treated each site separately under the one establishment test and had only consulted collectively where they had 20 or more staff at risk of redundancy at each individual site.

The fly in the ointment:   the effect of the EAT in the Woolworths case disregarding the one establishment test and replacing it with a one undertaking test was that the 20+ threshold was triggered even if you had lots of units (shops, in the Woolworths case) with fewer than 20 redundancies at each of them, but your overall business exceeded the 20+ redundancy threshold.

The consequences:  since then, many redundancies that might not have involved any collective consultation (and so could have been carried out quickly on a small scale) were “collectivised” and caused employers to incur a lot more risk and worry, as well as (possibly) pay their employees less redundancy pay, due to the need for a contingency to deal with the cost of external advisers and potential claims by those same employees and their representatives.

The commentaries:  many people thought that the EAT was correct and that the UK had failed to implement the relevant EU legislation properly; others thought it was curiously impractical.

It’s all over now:  it may now be time to ring out the bells.  Why?  Because the Advocate-General (“A-G”) of the European Court of Justice (“ECJ”) has opined that:

The UK can now limit the need to consult collectively on redundancies to cases in which the proposed job losses are at the same site (i.e. the place where people actually work) rather than look at the overall number of proposed redundancies.

Hurrah:  well, maybe…  But there are at least three further flies in the A-G’s ointment:

  1. there’s still scope to argue about the meaning of “establishment”:  what if (say) Prèt à Manger or Costa Coffee operates several stores, but in one shopping centre?  Would each store be treated separately, or would they be lumped together and have to be regarded as one establishment?
  2. the opinion of the A-G is limited to the UK, so the ECJ may come to a different conclusion if it decides similar issues that come to it from other countries.
  3. there’s also a risk that the ECJ itself, which isn’t bound to follow the opinion of the A-G, may go its own way (not for the first time) and not follow the A-G’s opinion.

Watch this space.  Many a drama involves a character leaving through one door and re-entering through another; the Ghost of Woolworths may well do the same.

Varying terms and conditions – A salutary lesson to all

CarolineLeaver

Re-Use Collections Limited (Re-Use) v Mr Keith Sendall (1) and May Glass Recycling Limited (May Glass) (2) deals with some important issues that employers need to know about:

What can be considered specific consideration (i.e. “value given by the employer”) for the purposes of accepting new terms and conditions?

Whether an employer can enforce restrictive covenants against a former employee where there has been no specific consideration given?

Re-Use is a glass recycling business and had originally been a family run business (set up in 1922 by Mr Sendall’s grandfather).  The business left family ownership and was transferred into the ownership of Re-Use.  Mr Sendall joined the family business in 1980 and remained an employee until his employment ended on 1st May 2013.   He was manager of the depot at Dagenham, Essex.

Mr Sendall become embroiled in legal action with his former employer, because whilst employed by Re-Use he had directly been involved in setting up a competing business (May Glass) in breach of his duty of fidelity and good faith to Re-Use.

This case deals with a number of legal issues, including whether Mr Sendall owed a fiduciary duty to Re-Use (which it was decided he did not).  But for the purposes of this commentary, I am focusing on whether the express restrictions – confidentiality and restrictions in relation to post-termination conduct, including non-solicitation and non-dealing with restricted clients and prospective clients – in Mr Sendall’s contract of employment, could be enforced against him.

Mr Sendall was given a new contract in October 2012 (five months before he resigned) which included a number of new restrictions on him.  Mr Sendall debated the changes but eventually signed and returned a copy of the contract of employment to Re-Use on 22nd February 2013.

This issue centred not on whether there had been acceptance of the terms, but on whether consideration had been given (i.e. what had the employer given to Mr Sendall in exchange for him agreeing to new terms and conditions).

When restrictions are entered into after the start of employment, this is a variation to the existing contractual relationship and requires express consideration (i.e. something of value) in order for the restrictions to be enforceable.

Re-Use’s position was that consideration had been given since the new terms were introduced as part of a package under which benefits were conferred upon Mr Sendall, including a pay rise. Alternatively,  they argued that continuing to employ Mr Sendall after the contract was produced was good consideration.

The Court rejected Re-Use’s position on the following grounds:

  1. When the Court looked at the ‘package of benefits’ in detail it materialised that Mr Sendall had already enjoyed these benefits before the introduction of the new contract terms, or in the case of the life assurance cover being increased from 2x to 4x salary the Court found no evidence to link this change to the introduction of the new contract.
  2. Mr Sendall had received an increase in salary in January 2013 but on the evidence there was nothing to show that the salary increase was linked to entering the new contract (there were pay increases at that time company-wide rather than only for those entering the new contracts) and there was nothing to make it clear that the pay increase was conditional on accepting the new terms.
  3. Finally, in relation to the continuing employment point, the Court found that there was no evidence to link a continued willingness to employ Mr Sendall with his willingness to sign the contract of employment.  In particular, there was no evidence (expressly or implicitly) to show that a refusal to sign would or might lead to dismissal or another lesser sanction.

The Court found that no consideration had been given and the post-termination restrictions were unenforceable.  This could be potentially very damaging for many employers in similar situations.

So what do employers need to consider when introducing new restrictions during employment?

  1. Give consideration for the restrictions and ensure that this consideration is ‘new’ consideration and not just rehashing an employee’s existing benefits.
  2. The consideration needs to have value to the employee if it is going to incentivise them to accept the new terms – for example, a one off cash payment or John Lewis gift vouchers.
  3. You need to make clear in correspondence dealing with the introduction of the new changes that the consideration being offered is in return for the acceptance of the new terms and conditions.  Make the link.
  4. You need to ensure that the contractual documentation and letters dealing with the proposed changes support the business’s position and do not undermine it.  In this case, the new contract referred to the old salary rather than the new increased salary that the employee was supposed to be receiving in return for accepting the new terms. Another error was to refer in the pay increase letter (sent in December 2012) that aside from the salary increase all other terms and conditions remained the same.
  5. Finally, if you are going to look to rely on the ‘continued employment is good consideration’ defence then make sure that somewhere in the documentation you refer to the consequences of not accepting the new terms i.e. if you do not accept the terms, then your employment may be brought to an end.

Whilst these may seem to be “techie” points, this is the latest in a line of cases dealing with variations.  See our December blog here dealing with another case.

 

Virtual Reality and ET collide

WynLewis

The Employment Tribunal system has brushed with Virtual Reality: you may be liable for more employees than you think. How?

The rights of overseas staff have taken up many column inches in recent years; employees in virtual reality less so. Recently a problem arose about someone who was both overseas and virtual; and this wasn’t the subject of a science fiction novel.

The issue is this: how far removed (physically or otherwise) from Great Britain does someone have to be before they lose their right to protection from unfair dismissal or discrimination? The answer is: nobody really knows for sure.

Since 2012, the test has been something like this: “where an employee’s place of work is not GB, is the connection with GB sufficiently strong that Parliament would reasonably have intended that an employment tribunal should deal with a particular employee’s claim?”.

That’s quite vague; also the cases have usually dealt with people who spent at least some of their time working in the GB office of the employer against whom they were bringing a claim, so the outcomes have been less than consistent.

Modern work practices mean that you don’t have to be in the office; sometimes not at all. In fact you don’t really need to be in the same country, so long as you have a decent Internet and phone connection that keep you in touch.

In this case, Mrs Lodge (an Australian citizen) was employed from February 2008 by two UK charities (Dignity & Choice In Dying and Compassion In Dying) to work in the UK as their head of finance. But from January 2009 she moved to live and work in Australia (in the same role, doing everything remotely for the same UK employers, but paying Australian tax and pensions and only visiting the UK three times each year – for 2 weeks and for 2 separate days) for the next 5 years, until she resigned in June 2013 having been told she would be the subject of a disciplinary process after a grievance.

That, from a GB perspective, was so remote working as to be seriously virtual.

Strangely (which was the oddest aspect of this case) the Employment Tribunal found that it wasn’t reasonable to assume that Parliament would have intended Mrs Lodge to be able to claim unfair dismissal in GB (even though it was quite happy to deal with her breach of contract claim). Sensibly, the Employment Appeal Tribunal disagreed about the unfair dismissal issue: it said that Mrs Lodge was like someone who had been posted abroad for the benefit of the home employer and that, because everything was managed from GB, she could claim unfair dismissal.

So what’s the lesson here?

It is that central (i.e. GB-based) management of overseas staff – especially if there is no regional or in-country management, and if issues like discipline and grievances are managed from GB, especially if there are no local, in-country employment contracts – will enable remote workers to bring claims; and could, in theory, enable people who have never even been to GB to do so too.

And the practical steps to take?

If this is a risk, then the practical steps are to introduce local management and delegated authority; to have a local contract; and to make that contract subject to local law (but that, in itself, has problems if you aren’t familiar with what that means and don’t have competent local lawyers). Although even this is unlikely to sever any link between the GB and “roving” regional personnel.

I’ve dealt with several of these cases for global charities. They need careful preparation before effective structures are set up in a way that exposes a GB employer to the least potential liability.