In the case of Fuller v United Healthcare Services, the Employment Appeal Tribunal agreed with the Employment Tribunal that Mr Fuller, a US citizen working for a US company out of the UK but who, despite maintaining his original role of Chief Operating Officer, became the Managing Director of Unite Healthcare’s UK subsidiary and took on responsibility for the UK and the Middle East (which was referred to as an “international rotation assignment”), did not have a sufficiently strong connection with Great Britain and British employment law. Mr Fuller’s claims for ordinary unfair dismissal, automatically unfair dismissal (on the grounds of whistleblowing) and sexual orientation discrimination all failed.
Important factors relevant to the key question of whether Mr Fuller had given up his base in the US and moved to the UK were:
- Mr Fuller’s strongest personal connection was with the US – he maintained his home in Texas, his partner still resided there and was provided with flights from the US to the UK to visit Mr Fuller.
- United Healthcare paid Mr Fuller in US dollars and he was on the same contractual US terms concerning pensions, bonus, holiday and pay rises.
- The international rotation assignment had finished and Mr Fuller had returned to the US before his employment was terminated.
- Mr Fuller was told of his impending dismissal while he was in the US so as to ensure that he had the support he needed thereby indicating that the US was his home.
- There was no true break in Mr Fuller’s work connection with the US – it was simply the case that Mr Fuller’s work in the UK (and other locations) was a continuance of his previous employment, just with a different emphasis.
- The contractual documentation stated that Mr Fuller would be based in the US and would be required to spend time in other places including the UK and UAE, and what happened in practice was consistent with that. The contract was therefore not out of date and there was no suggestion that it was a sham.
The case of CreditSights Ltd v Dhunna went all the way up to the Court of Appeal resulting in the Court of Appeal restoring the decision of the Employment Tribunal that Mr Dhunna did not have the protection of UK employment legislation. Mr Dhunna started employment with CreditSights Ltd (a British company) but relocated to its Dubai branch. Discussions had taken place about Mr Dhunna moving to CreditSights Singapore branch but before this could happen, Mr Dhunna was terminated on the grounds of gross misconduct. Mr Dhunna’s claims for unfair dismissal and breach of the right to be accompanied failed. The reality of the situation was found by the Employment Tribunal to be that Mr Dhunna had moved from the UK and had severed his links with it.
Important factors relevant to determining that Mr Dhunna did not have strong connections with the UK were:
- Mr Dhunna transferred his previous UK and European clients and focused on sales to Middle Eastern, Asian and African clients. His business card stated that he was a Director, Middle East, Asia and Africa sales and he was described in CreditSights marketing documents as part of its Middle East and Asian operations. Any revenue generated by Mr Dhunna counted as part of the Asian business, not the UK business.
- CreditSights continued to pay Mr Dhunna but he was paid without deduction for tax and national insurance and in US dollars (at Mr Dhunna’s request).
- Mr Dhunna benefited from UK holidays but he had his own separate health and dental policies in Dubai. He was not entitled to participate in similar UK benefits.
- Decisions about the Dubai branch were taken by CreditSights parent company in New York.
- The decision to dismiss Mr Dhunna was taken in New York.
- On a personal level, despite marrying before his move to Dubai, Mr Dhunna did not buy property in the UK and informed a colleague (shortly before he left for Dubai) that he was leaving the UK for good and hoped never to return.
- Mr Dhunna had obtained a three year visa to allow him to work in Dubai and intended to renew it if he was still working there.
- Mr Dhunna was line managed from Delhi and had close links with this office including management of employees at this office.
Both these cases show that the area of territorial jurisdiction of UK employment rights continues to depend on a full analysis of the particular facts of the case and the reality of the employee’s circumstances. For example, the fact that Mr Dhunna was engaged under an English employment contract by a UK limited company was not a compelling factor in his case. The Court of Appeal in CreditSights Ltd v Dhunna confirmed that the general test to be applied in these cases was whether the employee could show their employment relationship had a sufficient strong connection with Great Britain and British employment law so as to bring them within the protection of British employment law.