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Cross-border discrimination claim: could one be brought against you?

Citizen rights vary between countries. But as an employer, you should always comply with the highest standards of employee care no matter where you are. Here’s a compelling reason for that:

Across the world there are several jurisdictions – including the UK, US and any EU member country – in which employers can face claims brought by employees who are based in an entirely different legal territory:

  • These claims can be brought even if the employee has never set foot in their employer’s jurisdiction.

  • They can be costly, both financially and in terms of reputational damage.

Watch out for discrimination

If you’re a multi-national employer, it’s both ethical and prudent to be careful with your international policies and practices. This is particularly important in countries which don’t offer adequate protection against discrimination.

There are far more of these than you might expect. For example, there are currently 71 countries with anti-homosexuality laws.

So, the proviso for employees to bring claims against an employer in a different jurisdiction can provide an extraordinary mechanism for discrimination victims to seek some form of social justice in a place where they would not otherwise be able to get it.

How could a claim be brought

When there is a choice of law in the employment contract pointing to the employer’s jurisdiction, it is usually a straightforward case. However, there is also the not so obvious route - but equally efficient - based on the employee having a close connection to the country where the employer is established. So, what is a close connection?

This tends to be considered on a case-by-case basis. While simply being employed by a multi-national wouldn’t be enough, it doesn’t take that much to establish close connection in most jurisdictions.

Here are a few examples that may apply:

  • The work being carried by the foreign employee is wholly for the benefit of the employer in its own home country.

  • The employee is employed by a local subsidiary, but significant control is exercised over the employees and the subsidiary by the parent company from its home country.

  • The employee was originally hired to work in the employer’s home country but subsequently posted abroad.

Please do note that no single factor is usually determinative in itself. Courts will most likely analyse all the circumstances together.

How PEO Legal can help you

At PEO Legal, we provide legal and compliance advice for professional employer organisations and staffing companies around the world. If you want advice and support with any point of cross-border employment law, contact us, today:


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