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Do you have an international employee (or former employee) who splits their time between different countries? Make sure you are aware of which jurisdiction applies to any claims they may bring.

In the recent case of Fuller v United Healthcare Services Inc and another the Employment Appeal Tribunal considered whether a US citizen, who was employed by a US company but worked 50% of his time in the UK, could bring unfair dismissal or discrimination claims in the UK.

As neither the Employment Rights Act 1996 ("ERA 1996") nor the Equality Act 2010 ("EqA 2010") (which provide the statutory basis for unfair dismissal and discrimination claims) define their territorial scope, the Supreme Court has laid down rules for extending the jurisdiction of employment tribunals. Tribunals will have jurisdiction in circumstances where there is a connection with Great Britain sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for a tribunal to deal with the claim. It was under this rule that the Fuller case was considered.

Facts

Mr Fuller, a US Citizen, was chief operating office of Optuminsight, a segment of United Healthcare Services Inc ("UHS Inc"). In January 2012 Mr Fuller became the managing director of United Health UK Limited (part of the same group as UHS Inc) and his focus shifted to Optuminsight's clients in the UK and the Middle East.

As part of Mr Fuller's "international rotation assignment" he was required to spend approximately 49% of his time in the UK. UHS Inc took a two-year lease on a London flat for Mr Fuller's use and paid him a relocation allowance.

On 31 October 2012 Mr Fuller was told that his assignment would be terminated and following his failure to secure another role within the group Mr Fuller was dismissed on 3 January 2013.

Tribunal's decision

Mr Fuller was held not to have a sufficiently close connection to the UK to fall within the grasp of the ERA 1996 and the EqA 2010 and as such could not bring a claim against his employer under UK legislation.

Mr Fuller's international rotation was merely a continuance of his previous employment (albeit with a different focus) and therefore he had not given up his base in the US and moved to the UK. Mr Fuller's contract had an overwhelmingly close connection with the US, stipulating that he would be based in the US and paid in US dollars, and although he spent a large portion of time in the UK, this was not enough to overtake the contract.

Thoughts for employers

Following this case, employers should think carefully when deciding to change the location of employees and how to deal with employees that partially work abroad.

If you are employing a US citizen under US law but then decide to bring them to the UK the employee could now be engaged on English law terms and able to bring claims in the UK. If Mr Fuller had been paid in UK pounds or dismissed whilst in the UK rather than a number of months later after he had transferred back to the US, the decision in the case may have been very different.

It is important to identify what statutes apply to your cross border employees as this may affect how you must treat employees, how they can be terminated and what claims they can bring.

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