Australian Employee Working Remotely from Australia Could Bring Whistleblowing Claim

An Australian citizen employed by a British company who worked remotely in Australia for family reasons was entitled to bring unfair dismissal and whistleblowing claims in an English employment tribunal. 

In Lodge v Dignity & Choice in Dying, L was an Australian citizen and head of finance for a British company. Her contract was governed by English law and she initially worked in London at the company’s offices. Several months after her appointment, she moved to Australia as her mother was unwell. She worked remotely from Australia for about fourteen years. After she resigned, she sought to bring constructive unfair dismissal and whistleblowing claims in an English employment tribunal.

The employment tribunal considered whether L fell within the expatriate employee category identified in Lawson v Serco as entitled to bring claims in employment tribunals in Great Britain. It considered that she did not. She had not been posted abroad by a British employer for the purposes of a business carried on in Great Britain, but instead had chosen to go abroad. She could not therefore bring her claims.

The Employment Appeal Tribunal (EAT) overturned the tribunal’s decision. Although L did not fall squarely within the expatriate category identified in Lawson, nevertheless all of the work she did in Australia was for the benefit of her employer’s London operation. The fact that her employer permitted her to work from Australia for family reasons, rather than posted her there made no difference.

Cases of employees working remotely for British operations are likely to become increasingly common with high speed internet connections and other advances in technology. This case demonstrates that such employees may be able to bring employment tribunal claims in Great Britain.

In Ravat v Hallibuton, the Supreme Court said that the test in each case should be whether there is a sufficiently strong connection with Great Britain. In Lodge, the employment tribunal considered that the connection with Great Britain was not sufficiently strong and that Parliament could not have intended that an Australian national who asked to be allowed to work in Australia, and who submitted herself to the Australian tax and pension regimes, should nonetheless be able to bring unfair dismissal and whistleblowing claims in an English employment tribunal. Unfortunately, the EAT did not consider the Ravat test in coming to its decision but it did consider that the fact that she could not enforce her rights in Australia and that her grievance had been dealt with in London were relevant factors. These are the sorts of factors which an employment tribunal considering the Ravat test in similar cases will take into account.