In Fuller v United Healthcare Services Inc & Anor UKEAT/0464/13/BA, the Employment Appeal Tribunal (EAT) considered whether a US citizen who spent approximately half his time working in the UK could bring statutory employment claims in the UK Employment Tribunal.
Mr Fuller, a US citizen, was employed as a senior executive of United Healthcare Services Inc (UH), a US company. His employment contract provided that it could be terminated "at will" by either party. It did not expressly state which law it was governed by but stated that any employment dispute would be determined by the American Arbitration Association. Mr Fuller was assigned a role which involved spending half his time in the US and the other half in the UK working for a subsidiary of UH. For cost-saving reasons, UH terminated both his employment in the US and his assignment in the UK. Mr Fuller brought UK statutory claims of unfair dismissal, whistleblowing and discrimination. The EAT found that his employment contract had an "overwhelmingly close connection" with the US, primarily because (i) his employer was a US company, (ii) he was paid in US dollars, (iii) during his time in the UK he lived in rented accommodation paid for by UH; and (iv) it was clear taking into account all the circumstances that he had not given up his US base. As such, his employment was not sufficiently connected with the UK to entitle him to bring these claims.
Given that employment law is generally more favourable to employees in the UK than in the US, it is perhaps not surprising that Mr Fuller tried to bring claims in the UK. While UK courts will consider the day-to-day activities of an employee on an international assignment, they will also review the underlying contractual documents; it is therefore important that non-UK employers ensure that such documents do not create any contractual nexus with the UK.