Can an employee who returns to Australia, at her own request, but who continues to work for a UK company, bring an unfair dismissal claim?
Yes, held the EAT in Lodge v Dignity & Choice in Dying.
The Claimant was an Australian citizen employed jointly by both Respondents. After having commenced her employment at the Respondents' only office, on Oxford Street, London, her mother became ill and she sought to return to Australia.
The Claimant put forward a proposal to the Respondents whereby she would continue in her role as Head of Finance remotely from Australia using the VPN. The Respondents agreed to this proposal which operated from 2009 until the Claimant's resignation in 2013. The Claimant sought to bring claims for unfair dismissal and subjection to detriment for having made a protected disclosure. The employment tribunal held that she could not.
On appeal, HHJ Peter Clark adopted the approach of the EAT inFinancial Times Ltd v Bishop which had been approved by Lord Hoffmann in Lawson v Serco. HHJ Clark held that although, unlike Mr Bishop, the Claimant had not been posted overseas, the examples given by Lord Hoffmann in Serco, were just that.
The EAT was particularly impressed by the fact that all of the work the Claimant did from her computer in Melbourne was for the Respondents' benefit, that the Respondents had not disputed the Claimant's contention that she had no right to bring a claim in Australia and that a grievance she had raised while in Melbourne had been dealt with in London.
The EAT concluded that the Claimant did not lose her right to bring her claims in England simply because, instead of working as a physical employee in the Oxford Street office, she continued to do so as a virtual employee from Australia.