Relocated employees have rights even if "virtual"

Oliver Harris and Hadie Cohen discuss the implications of a recent UK employment tribunal ruling for virtual employees in Israel.

If you relocated from Britain to Israel and have continued to work for the same British employer you worked for in Britain (and on the same terms), a recent British employment appeal tribunal (EAT) will be of interest to you. The decision indicates that, even if the relocation was at your own initiative, rather than at your employers request, you may continue to have protection under British employment law.

This is extremely relevant even if you only moved to Israel for personal reasons as opposed to needing to show that your employer posted you abroad. Prior to this case it was generally thought that any relocation would have to have been at the employers behest in order for an employee to retain rights under British employment law. Foreign correspondents for British newspapers are the usual example.

Whilst the case discussed below concerns Australia - the law would have been applied to the facts in the same way by the EAT had the case involved Israel or elsewhere.

The case concerned Mrs Lodge, an Australian national who had lived in England and was working for a controversial charity - Dignity & Choice in Dying. She relocated of her own accord, for family reasons, to Australia where she worked Australian hours, although from time to time she made herself available during London office hours in her evenings. Mrs Lodge had no base in England and returned in connection with her job to England occasionally and only for very limited periods of time. Furthermore, she was subject to the tax and pension regime of Australia and did not pay tax or national insurance in the UK.

In a rather surprising decision, the EAT held that Mrs Lodge was entitled to the protection of UK employment law. The principal reason for the EATs favourable decision was that Mrs Lodges work was being carried out for the benefit of a business conducted in Britain - for her employer. She was a virtual employee of the London office (working remotely through a virtual-private network) and it made no difference where she was stationed in the world.

It would appear from the EAT decision, that it is not the reason for an employees move abroad which is determinative, but above all, a question of who the work is for and how (or rather, where) the work fits into the employers operations. It is also notable that the EAT took account of the fact that Mrs Lodge had no cause of action in Australia and that the initial grievance procedure and disciplinary action, the precursor to her claim, was all dealt with and heard by her employer in London.

It is impossible to set down hard and fast rules for future cases - this is an area of factual inquiry and decisions are made on a case by case basis. Essentially, the EAT decision boils down to a finding that Mrs Lodges employment had a sufficiently strong connection to Britain to consider that Parliament would have intended that her claims merited the jurisdiction of the British tribunal. The fact that it is now clear that the motivation for a relocation is not determinative, may well be relevant in the context of Aliya to Israel from Britain, where, like Mrs Lodge, employees may not have been posted to Israel but have chosen to move to Israel with their employers consent.

The authors are lawyers in Asserson Law Offices (ALO), the largest foreign law firm in Israel. Although it is based in Tel Aviv, ALO works under English law in commercial and property transactions and disputes.

Published by Globes [online], Israel business news - - on July 21, 2015

Copyright of Globes Publisher Itonut (1983) Ltd. 2015

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