Woman lawfully dismissed after working remotely from France

A woman has lost her claim for unfair dismissal and breach of contract to an employment tribunal after she was sacked for working remotely from France.

Iryna Malyk was employed as a regional finance business partner by Teleperformance Contact between May 2022 and August 2024. Her contract was hybrid, but once the company's Bristol office closed in early September 2022, Malyk worked entirely from her home.

On 21 June 2024, Malyk requested a meeting with her line manager, Mr Aouate, as her husband had secured a job offer in France and she wanted to explore the possibility of relocating. Malyk was aware that other employees had moved countries and asked if she could perform her duties from France or have a local French contract.

Mr Aouate told her she could not work from France with a UK contract of employment and that there was no position there. Malkyk also stated that Mr Aouate said there was limited work for two European regional finance managers due to upcoming organisational changes.

In a follow-up call, Mr Aouate told Malyk that she could not permanently work on UK projects in France because this would cause legal and tax issues. However, he did not provide specific details about which laws he was referring to.

Later that day, Malyk emailed Ms Solomon, the UK head of HR, stating that due to personal circumstances she would be relocating to France in July and she was planning to continue working from home there. Ms Solomon said that during a conversation between her and Malyk, she showed Malyk the hybrid work policy; Malyk said that she was not shown this.

Malyk believed she could work from France as her contract was fully remote, but Ms Solomon said that she explained to Malyk that she needed permission to work in another country from her line manager.

In a meeting, Mr Aouate disagreed that Malyk's contract allowed her to work from anywhere and said for her to work in France, she would need a French contract.

On 15 July, Mr Auotate provided an outcome letter that explained that Malyk's contract is based on UK obligations, and it is not financially viable to employ her in another country.

Mr Auotate confirmed that the company would not accommodate Malyk's request to work from France as they could not accommodate her role from France.

The letter went on to say that Mr Auotate understood Malyk had already made arrangements to leave the UK. He asked her to review her decision, and if she did not do so, he asked her to send her a written resignation with appropriate notice. Malyk was offered a right of appeal, but she did not appeal, as she felt she had not made a flexible working request due to the fact she had not requested any change to hours, duties or work patterns.

'Unilateral instruction'

The letter stated that "it is simply not feasible for you to work for Teleperformance Contact Limited (UK) from France" and "it is a reasonable management instruction to require you to attend work in the UK. Failure to attend work in the UK will be treated as pre-meditated unauthorised absence and a failure to follow a reasonable management instruction."

It also said, "One potential sanction for failure to follow a reasonable management instruction, following an appropriate disciplinary procedure, is dismissal from the Company without notice or notice pay."

Malyk replied on 19 July saying she disagreed with this decision and that performing her duties from France did not go against any provision of her contract. She added that the instruction to attend work in the UK was unilateral and a change to her contract.

Around one week after moving to France, Malyk was invited to an investigation meeting with Mr Rouffia, the zone manager at Teleperformance Contact France. The meeting was to discuss "alleged failure to follow a reasonable management instruction and carry out your work from the UK and not from France".

The tribunal heard that Malyk was warned that this was potential gross misconduct, though she had replied to Mr Rouffia saying there was nothing to investigate as she had moved to France on 21 July and was not hiding this.

During the meeting Malyk confirmed she was in France and planned to stay there at the moment. She said that she was following her contract and had simply told Mr Aouate about her home address changing. Mr Rouffia accepted that Malyk was honest in the meeting and was not trying to hide the fact she had been working from France.

She was suspended from work on 1 August, though she was told this was precautionary and not a penalty or prejudgment, which was confirmed in an invitation to a disciplinary hearing on 6 August.

In the disciplinary hearing, Malyk maintained that her contract allowed her to work from home in France. She also said that she had the impression her contract was under redundancy and there would be no job for her in the near future.

Dismissal

Malyk was dismissed on 27 August 2024 with two months' notice. Mr Aouate told the tribunal that he had looked at Malyk's contract, and found that she had gone against an instruction from the company.

Although he said that this did not amount to gross misconduct, Mr Aouate explained that Malyk's contract was based on UK contractual obligations, and it was not financially viable for the company to accommodate the additional costs and requirements involved to employ her in another country.

Mr Aouate said he had no plans to make Malyk redundant as he was very happy with her work. He felt he had to dismiss Malyk because he had to avoid any risk of the French authorities discovering that an employee was working in France while employed on a UK contract.

Malyk appealed this decision, but this was not upheld, despite another employee's UK contract having been terminated when he moved to Portugal.

Malyk's claim of unfair dismissal was not upheld. Employment Judge Oliver ruled: "A key issue is whether the Claimant was entitled under her contract to work from home in France instead of in the UK. If so, it would not have been reasonable to require her to work from the UK and to dismiss her for this reason.

"The Claimant says that her contract does not have any express term in it which prohibited her from working from a home outside the UK.

"The Respondent says that the contract did not have any express term in it that would allow her to do so, and argues that the contract contains either an express or an implied term that she must work in the UK. I have considered whether work in the UK was an express term of the contract. I find that it was."

Judge Oliver added that this was due to Malyk's home address in her contract being an address in Bristol, UK, and that her contract named her primary place of work as 'home office'.

"Taken together with the various references to UK law, including the need to be eligible to work in the UK, I find that the contract expressly states that the Claimant will work from her home in the UK", Judge Oliver said.

In relation to the reasoning behind Malyk's dismissal, Judge Oliver confirmed that "this is a reason that is capable of being 'some other substantial reason'. It is a substantial reason, as it is based on the Respondent's belief that it would not comply with French law for the Claimant to live permanently in France while working under a UK contract."

The judge said that this was "not trivial and not an impermissible reason (such as being based on unlawful discrimination). I am satisfied that this is a potentially fair reason for dismissal." Adding, "I therefore find that the Claimant's dismissal was fair in all the circumstances."

Judge Oliver found that Malyk's breach of contract claim was out of time, but that the company did not act in breach of contract had this not been the case.

Olivia Toulson, partner in the employment team at Birketts said: "The outcome of this case should not be a surprise. An employee who moves abroad without the proper measures in place can trigger significant tax and legal consequences for their employer - which is why such requests are often justifiably refused or time limited.

"This case makes it clear that where there is a contract of employment in place governed by the laws of England and Wales, it is an implied (if not express) term that the employee will work in the UK, even if the contract is described as 'fully remote'. Very often an employer will have no option but to terminate the employment of someone who has left without permission and refuses to return to their base country because of the risk they will be pursued by foreign authorities for breaking local laws if the arrangement continues."