UK expatriates working for UK companies but posted overseas may think they are not covered by UK employment law and unable to take their cases to a UK tribunal. The procedures may be less straightforward and the issues more complex but you do have access depending on the case and your contractual conditions.
There was a recent case concerning a UK expat working for a UK company in Asia who had his case rejected by a UK tribunal on the grounds that it was outside their jurisdiction. This ruling was overturned on appeal and it serves as a reminder to all UK employers with expatriate staff working for them overseas that they are not immune from resolution by UK tribunals.
Below is an outline of the case.
- The Expat was a UK citizen who had been recruited in the UK by a British organisation.
- The expat had been recruited under a contract of employment that expressly incorporated English law.
- The Expat employee was entitled to a pension under the civil service pension scheme.
- The expat had notional deductions taken from salary for UK tax.
- The employer was a British public body.
The combination of all of these factors meant that a strong connection with Great Britain and British employment law was established.
Things to consider for UK expats
UK expat employers will often recruit staff from within the UK and deploy them overseas and when they do, the employer must decide on which legal system they should use to regulate the employment relationship. Employers based in England and Wales will want to ensure that if an employment dispute were to arise it would be decided with reference to their own domestic legal system. This may not apply in every case and where it does not then appropriate legal advice should be sought.
Within the UK most employment disputes are resolved by tribunal but to ensure your case is properly presented you should consider having professional representation to ensure you obtain the best result. Typical areas of dispute are:
Grievance and disciplinary issues affecting expats
Grievances are concerns or complaints that employees raise with their employer. There are no legally binding processes that you or your employer must follow when raising or handling a grievance at work however there are some principles you and your employer should observe.
In the first instance you should discuss your grievance informally with your employer to see if it can be simply resolved but if this does not work then further steps will be needed. This should be approached with reference to your employer’s formal procedures for grievances which should would normally be found in one of these areas.
- The company handbook
- human resources (HR) or personnel manual
- HR intranet site
- Your employment contract
Unfair dismissal of expats
Dismissal by an employer could be unfair if the employer does not have a good reason for dismissing you or has not followed the company’s formal disciplinary or dismissal process.
Situations when your dismissal is likely to be unfair include if you:
- asked for flexible working
- refused to give up your working time rights such as rest breaks
- resigned but gave the correct notice period
- joined a trade union
- took part in legal industrial action that lasted 12 weeks or less
- needed time off for jury service
- applied for maternity or paternity and adoption leave
- were on any maternity paternity and adoption leave you’re entitled to
- tried to enforce your right to receive working tax credits
- exposed wrongdoing in the workplace
- were forced to retire against your wishes
Constructive dismissal of expats
Constructive dismissal is when you have been forced to leave your job against your will because of your employer’s conduct but the reasons you leave your job must be serious.
Some examples of constructive dismissal are:
- Your employer refuses to pay you or suddenly demotes you for no reason
- Your employer forces you to accept unreasonable changes in the way you have been working or tells you to work night shifts when your contract is only for day work
- Your employer allows other employees to harass or bully you
If you do have a case for constructive dismissal you should leave your job immediately as your employer may argue that by staying, you accepted the conduct or treatment.
Redundancy rules for expats
Redundancy can be a form of dismissal and should only happen when the job no longer exists. This could be because
- the employer needs to reduce their workforce
- the business is to close
- The work you do is no longer needed by the business]
If an employee is made redundant they may be eligible for certain rights such as time off to look for work, be given redundancy pay and have a notice period and consultation with the employer.
- Consultation – Consultation should begin in good time and must begin at least:
- 30 days before the first dismissal takes effect, if 20 to 99 employees are to be made redundant at one establishment over a period of 90 days or less
- 45 days before the first dismissal takes effect, if 100 or more employees are to be made redundant at one establishment over a period of 90 days or less.
- Redundancy payments – Employees may be entitled to redundancy payments if they have been continuously employed for at least 2 years.
Statutory entitlements are:
- 5 week pay for each full year of service while aged under 22
- 1 week of pay for each full year of service while aged 22 or older, but under 41
- 5 weeks of pay for each full year of service while they were aged 41 or older.
Employees can only count a maximum of 20 years of service and the weekly pay is subject to an upper limit which currently is capped at £489.
Should you find yourself in need of help on any of these matters, expatriates.co.uk legal partners will be able to help you. Simply complete the enquiry form provided.