99 Problems But A Snitch Ain’t One

HR professionals and employment lawyers are relatively familiar with the territorial limitations on the right to claim unfair dismissal.  However what protection does a non-UK based individual have against a UK company in the event of blowing the whistle on its employer?  The EAT has recently given some guidance on the territorial limitations for automatically unfair dismissals and more specifically the protection for whistle-blowers who work abroad.

Can an employee who works abroad raise a claim in the UK?

The short answer is possibly, yes.  The overarching principle is dependent on the connection between the employment relationship and Great Britain being so strong that the unfair dismissal provisions should apply to the employee’s circumstances.  In certain circumstances, an employee who works outwith the UK but whose employers are based in the UK will be permitted to pursue a claim of unfair dismissal through the UK tribunal system, provided that the employee has a much stronger connection with the UK than any other jurisdictions.

What were the facts of the case before the EAT?

In the case of Smania v Standard Chartered, a banker working in Singapore sought to argue that UK whistle-blowing legislation applied to him.  This employee made allegations of financial misconduct and was subsequently dismissed.  His employer’s registered office was based in the UK and regulated by both UK law and the relevant Asian regulation.  Despite the fact that he was based in Singapore, he sought to pursue a claim of automatic unfair dismissal through the UK tribunal system.

What did the EAT decide?

The EAT decided that the territorial limitations on the laws relating to unfair dismissal were in essence the same as the laws relating to whistle-blowing dismissals.  It stated that, whilst it may be “desirable in a general sense” that there should be protection for anyone making a protected disclosure anywhere in the world, UK law could not be read to have such a world-wide application.  The EAT could not see any reason for legislation concerning protection from automatic unfair dismissals being any different from the law relating to unfair dismissals.

Furthermore the EAT held that the European Convention on Human Rights did not extend to Singapore and could therefore not be extended on this occasion to compel a different interpretation of the whistle-blowing-protection legislation.

What does this mean for employers?

This EAT judgment is authority for the principle that, whilst an employee who works outwith the UK can, in certain circumstances, pursue a complaint against its UK employer under whistle-blowing legislation, this is still subject to the same territorial limitations which would apply to the more standard claim for unfair dismissal.  However the connection between the employment relationship and Great Britain requires to be sufficiently strong to permit this.

Whilst a UK-based employer may encounter many problems with regards to its oversees staff, it appears that there are no additional rights which can be enforced against the employer under the whistle-blowing legislation.  The overseas whistle-blower does not therefore have any greater rights to advance a claim in the UK than other overseas workers.

Simon Allison
Partner – Employment Law

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