Victoria Willson looks at why the employment status of expatriate staff needs careful attention
The Employment Appeal Tribunal recently published its judgement in the case of Rev Pauline Walker v Church Mission Society, which confirms the legal principles to be applied when considering whether an 'expatriate' employee (who works and is based abroad) is entitled to bring a claim for unfair dismissal in the UK.
The society is a Christian mission agency and registered charity involved in mission work abroad. Walker was employed in 2001 as a regional manager and spent the first year of her employment at the society's headquarters in Oxford. However, it was envisaged from the outset that she would work abroad, and in 2002 she was relocated to Africa.
Her work was focused on Sudan but, because it was too dangerous for her to be based there, she was posted to Uganda and then Kenya. The purpose of her work was to decentralise the regional operation from Oxford to Sudan.
Walker was line-managed by an employee, based in Africa, of an associated organisation, Church Mission Society Africa, which provided her day-to-day expenses. Her earnings were not subject to UK tax.
In 2010, Walker was made redundant. She brought an unfair dismissal claim in the Employment Tribunal.
The legal decision
The tribunal found that Walker's employment was in Africa and she was not entitled to bring her claim in the UK. She appealed, arguing that her employment fell within the examples of circumstances in which UK law applies, as set out in the case of Lawson v Serco. In that case, the House of Lords ruled that the right to claim unfair dismissal applied to expatriates only in limited circumstances. It was not sufficient for the employee to have been recruited in Britain by a British employer.
Walker claimed she was, in effect, the foreign correspondent of the society in Oxford and that she had an equally strong connection to Britain and British employment law as, for example, a foreign correspondent.
The appeal tribunal agreed with the tribunal's assessment and found that Walker was conducting her work abroad - she was not a foreign correspondent. It also found that she, not having put forward any other material to support her argument that she had an equally strong connection to British employment law, did not fall within that definition either.
The original decision was upheld and Walker was denied permission to appeal to the Court of Appeal.
Lessons for charities
Charities that have employees working and based abroad should consider which country's law will apply - preferably before employment commences - and document the position in the employee's contract. This can be particularly useful in breach of contract claims where, in general, the parties might have a choice about which jurisdiction can deal with claims.
However, in statutory claims such as unfair dismissal, the question will be determined by application of the legal principles to the particular facts, and cannot simply be chosen. Charities should seek expert advice on this particularly complex area.
Victoria Willson is a partner at Levenes Employment, third sector specialists