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27 November 2015

Which country’s law applies when working abroad?

British workers who take jobs abroad often achieve higher earnings and are exempt from UK taxation. However, such benefits frequently entail the sacrifice of the legal protection afforded by British employment laws, as a construction industry worker discovered when the Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that his employment was more closely linked to the Middle East than to Britain (Strickland v Kier Limited and Others).

Between September 1997 and October 2007, Mr Strickland had been employed by the Kier Group of Companies (Kier), living and working in the UK. In 2007, he went to work for another construction business in the Middle East. Whilst living in Dubai, he had discussions with Kier with a view to returning to their employment in the Middle East. As a result, he was offered and accepted the post of Area Commercial Manager, based in the Dubai office, and commenced that employment on 19 April 2009. He continued to work under the terms of that contract, in Dubai and Saudi Arabia, until his resignation in June 2013.

Following his resignation, he launched ET proceedings claiming unfair dismissal and that he had been subjected to detrimental treatment for whistleblowing. However, the ET found that neither Mr Strickland nor his employer had considered what the relevant law to be applied to the contract was. In the circumstances, it did not have territorial jurisdiction to consider his complaints on the basis that his employment was more closely connected to the Middle East than to Britain.

In rejecting Mr Strickland's challenge to that decision, the EAT found that the ET had applied the correct legal test when considering the limits of its jurisdiction. When seeking non-resident status for tax purposes, he had informed HM Revenue and Customs that he only travelled back to the UK for family visits and the occasional meeting. Although that statement was not necessarily decisive, it was a factor which the ET was entitled to take into account when reaching its decision. Furthermore, the EAT found that there was no error in the application of the 1980 Rome Convention on the law applicable to contractual obligations given the facts permissibly found.

Contact Paul Lawton in the employment team for advice on any contractual matter. Call 01753 279029 or email employmentlaw@bpcollins.co.uk.

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