THE
EMPLOYMENT RELATIONS ACT: EMPLOYMENT OUTSIDE GREAT BRITAIN
Changes made by Section 32
The
Employment Relations Act 1999 makes changes to the application
of British employment law. Section 32 of the Act:
- repeals
section 196 of the Employment Rights Act 1996, which excluded
employees ordinarily working outside Great Britain from
rights conferred by that Act; the exclusion is retained
in relation to mariners by an amendment to section 199
- amends
section 285 of the Trade Union and Labour Relations (Consolidation)
Act 1992 so that the provisions of that Act relating to
the procedure for handling redundancies apply in relation
to employees ordinarily working outside Great Britain.
These
changes were considered to have significant advantages. They
support fairness, ensure that the UK is fulfilling its EU obligations
and, by extending employment rights to employees temporarily
working in Great Britain, contribute to the implementation of
the Posting of Workers Directive which the UK was required to
implement by 16 December 1999.
Effect
of the repeal of section 196
There
is no longer a requirement that an employee must ordinarily
work in Great Britain in order to qualify for protection under
the Employment Rights Act . This requirement was considered
by the Government to be unnecessary and an obstacle to fair
treatment in a few cases. In spite of its removal, international
law and the principles of our own domestic law have the effect
that UK employment law will not apply where this is not appropriate.
In order for UK law to apply in a particular case there must
be some proper connection with the UK first, i.e. the features
of the employment or other circumstances of the case are such
that the case has a closer connection with the UK than with
other countries and where other aspects of the situation would
also be covered by UK law.
In
the absence of any provision limiting the application of the
1996 Act to employees ordinarily working in Great Britain, its
application will be governed by the Rome Convention on the Law
Applicable to Contractual Obligations and by Directive 96/71
on the Posting of Workers. The Convention was transposed into
UK law by the Contracts (Applicable Law) Act 1990.
- Article
6(1) of the Rome Convention provides that in a contract
of employment a choice of law made by the parties shall
not have the effect of depriving the employee of the protection
afforded to him by the mandatory rules of the law which
would have been applicable had he not chosen otherwise.
- Article
6(2) of the Convention provides that in the absence of choice
a contract of employment is to be governed:-
(a)
by the law of the country in which the employee habitually carries
out his work in the performance of the contract, even if he
is temporarily employed in another country, or
(b)
if the employee does not habitually carry out his work in any
one country, by the law of the country in which the place of
business through which he was engaged is situated;
unless
it appears from the circumstances as a whole that the contract
is more closely connected with the law of another country, in
which case the contract shall be governed by the law of that
country.
- The
Directive sets aside the Convention for the benefit of workers
posted to work in a Member State other than that where they
are normally employed. Such workers must have the protections
accorded to workers in the host state. This may be an additional
factor to consider where an employee who normally works
in the UK is posted to a Member State for a limited period.
Section
32 came into force on 25 October 1999, by virtue of the Employment
Relations Act 1999 (Commencement No.2 and Transitional and Saving
Provisions) Order 1999. The Order includes transitional and
saving provisions concerning the application of the right to
a written statement of employment particulars, the right to
maternity leave and the right to payment from the National Insurance
Fund.
