Expatriate Employees Can Still Claim Unfair Dismissal

Teachers employed by the UK Secretary of State to work for European schools overseas fell within the protection of the Employment Rights Act 1996, the Supreme Court has held in Duncombe and ors v Secretary of State for Children, School and Families (No2) [2011] UKSC 36.

The decision as to whether the teachers could claim unfair dismissal rested on the principles for expatriates identified in the case of Lawson v Serco Ltd, including whether the employees worked in a British enclave, whether they worked for a business carried on in Great Britain or whether they had "equally strong connections with Great Britain and British employment law".

It was held by the Supreme Court that a special combination of factors existed that brought the teachers' employment within the Lawson principles and that they therefore had unfair dismissal protection.  Firstly, their employer was not only based in Britain but was the British Government; secondly, their contracts were governed by English law; thirdly, they were employed in an international enclave with no particular connection to the country they were situated in; and fourthly, it would be anomalous for a teacher employed by the British Government in a European school in England to enjoy different employment protection from a teacher who happened to be employed in a similar school overseas.

This is a useful and reasoned interpretation of the Lawson principles but it also shows that there is no single definition for expatriate employees; each case will be considered on its facts.