Territorial Jurisdiction 1 June 2017
Is the assessment of whether an employee has a strong connection to the UK (to give an employment tribunal territorial jurisdiction to consider a claim) objective rather than subjective?
Yes, held the Employment Appeal Tribunal (EAT) in Green v SIG Trading Ltd .
The Respondent (a limited company registered in the UK) employed the Claimant as the managing director of its operations in Saudi Arabia. He lived in Lebanon, commuting for two to four days at a time. He was paid in UK pound sterling, and registered with HMRC, although he was tax exempt. His contract of employment stated that it would be governed by English law and referred to some UK employment legislation. The contract also contained a mobility clause that might require him to work in the UK, and restrictive covenants that applied to the UK and Ireland. The Claimant was dismissed by reason of redundancy and he brought claims before the employment tribunal.
The employment tribunal held that Mr Green was an expatriate employee, with stronger connections to Saudi Arabia than the UK, and they did not have territorial jurisdiction to consider his claims. He appealed.
The EAT held the employment tribunal had applied the wrong test. The focus should not have been on his role or duties, but who he worked for; a UK business. The employment tribunal had failed to carry out a proper assessment of the relevant factors. The EAT stated the proper test was an objective assessment of whether the employee's connection was stronger to the UK or to Saudi Arabia, whilst also looking at the wider context. The employment tribunal had given too much weight to the Respondent's subjective explanation for the jurisdiction clause. The parties could agree that the contract was governed by English law (and there was no dispute that a breach of contract claim could proceed), but it was a matter for the employment tribunal if the statutory employment protections applied. As the employment tribunal had disregarded a relevant factor, the appeal was upheld.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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Ambulance workers’ holiday pay to include overtime for ‘shift overruns’ 5 June 2017
In Flowers and others v East of England Ambulance Trust , the employment tribunal held that ambulance workers’ non- guaranteed overtime in respect of “shift overruns” should be included in the calculation of their holiday pay, but that on the facts of this case purely voluntary overtime does not have to be included.
Personnel Today has published a useful summary of the outcome of this employment tribunal:
“The respondent accepts that the ‘shift overrun’ non-guaranteed overtime should be taken into account in determining statutory holiday pay under the WTR [Working Time Regulations] or WTD [Working Time Directive] and, if necessary, it is possible to construe the WTR to mean that such payments should be taken into account…
There has therefore been unauthorised deductions from the wages of those claimants who, in the three months prior to any period of leave, undertook such non-guaranteed overtime.”
Workers at East of England Ambulance Trust brought unlawful deductions from wages claims in relation to how the trust calculates their holiday pay.
The ambulance workers claimed that their paid annual leave should have included: overtime that is required when a shift overruns (ie if their shift ends during an emergency); and voluntary overtime that the workers can choose to do when it is offered (ie additional shifts planned in advance).
The employment tribunal concluded that the trust has to include non-guaranteed overtime for “shift overruns” in the workers’ holiday pay.
The tribunal acknowledged that it is not open to any of the claimants to leave at the end of the shift if they are in the middle of an emergency call.
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