Yes, the EAT held in Green v SIG Trading Ltd.
A limited company registered in the UK employed Green as the managing director of its operations in Saudi Arabia. Green was paid in pound sterling and registered with HMRC. His contract of employment stipulated that it would be governed by English law and referred to UK employment legislation. The contract also contained a mobility clause that could require him to work in the UK. Green was dismissed by reason of redundancy, which led to him bringing claims before the ET.
At first instance, the ET held that Green was an expatriate employee, with stronger connections to Saudi Arabia than that UK, and they did not have territorial jurisdiction to consider his claims. On appeal, the EAT ruled that the ET had applied the wrong test, shifting the focus from his role to who he worked for, a company registered in the UK. The ET had failed to carry out a proper assessment of the relevant factors and the proper test was an objective assessment of whether the employee’s connection was stronger to the UK or to Saudi Arabia, whilst also considering the wider context. The ET had given too much weight to the Respondent’s subjective explanation for the jurisdiction clause. Both parties agreed that the contract was governed by English law; however, it was a matter for the ET to decide if the statutory employment protections applied. As the ET had disregarded a relevant factor, the appeal was upheld.
The decision of the EAT provides guidance on how an ET should go about deciding whether it has territorial jurisdiction and acts as a clarification to UK registered companies who have employees working abroad, that, on an objective assessment, these employees will still be protected by and hold their employment rights under UK law.