Where employees work abroad even for many months at a time they may still be entitled to claim the range of rights including unfair dismissal under the British legislation, the Employment Rights Act 1996 (ERA `96). This could be beneficial as these rights can be wider than those provided under Spanish law. It used to be the case that the ERA `96 did not apply to `any employment where the employee ordinarily works abroad\u00b4 but this clause was removed in 1999 and there is now no statutory provision dealing with this issue, rather it is a matter of case law. To fall within this legislation, the employee has to prove that there is a sufficiently close connection with Great Britain. The employees in the cases of Serco v. Lawson (2006) and MOD v Wallis (2010) were successful in substantiating this. In the case of Serco v. Lawson, a UK company employee was working in the Ascension Islands and all services were carried out there. The Judge gave two circumstances where an employment relationship might be sufficiently closely connected with GB so as to enable an unfair dismissal claim to be made under the British legislation and these are: (i) where an employee is posted abroad to work for a business conducted in Britain and\/or (ii) where he is working in a political or social British enclave abroad.<\/p>\n
In MOD v. Wallis the employees were employed by NATO in Europe. These employees were the wives of armed forces personnel and were employed as such by reason of their husbands\u00b4 employment. This was sufficient to establish the connection as they were said to be working in a similar situation to (ii) in Serco and were entitled to claim unfair dismissal notwithstanding that they were not employed within GB. The employees also succeeded in claiming sex discrimination on the basis that it is a matter of EU law and therefore irrelevant which national law is applicable, provided that it is the law of a member state within the EU.<\/p>\n
However in relation to unfair dismissal, the recent case of Duncombe & others v. Secretary of State for Children, Schools and families (2011) narrowed the criteria somewhat and held that employees working or based abroad can claim this right in GB only in exceptional circumstances where the employment has much stronger connections with the country and with British employment law than with any other system of law.<\/p>\n
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It cannot therefore be assumed that responsibility for an employee passes entirely to the overseas organisation in these circumstances. It will depend on the facts of each case. To obtain advice as to British and Spanish employment rights and the applicable law please contact Maria Corder.<\/p>\n
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T: (+34) 951 315 161 F: (+34) 951 315 162<\/p>\n
E: mariacorder@decottalaw.net<\/p>\n
Post: Spanbox B220, Apartado 178, 29100 Co\u00edn, M\u00e1laga<\/p>\n
Or drop into De Cotta Law\u2019s new office, opposite La Trocha: Local 6, Sierra Chica, 29100 Co\u00edn, M\u00e1laga<\/p>\n
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