In order for an international employee to persuade a tribunal that they have territorial jurisdiction to hear their claim, they have to convince the tribunal that they have a “sufficiently strong connection” with the UK.
But is the test objective or subjective? This recent decision says objective—but tribunals also have to look at the bigger picture.
The company was registered in the UK and employed Mr Green as the managing director of its Saudi Arabian business. Mr Green lived in Lebanon, but commuted to Saudi Arabia for days at a time. He was paid in pounds and, although he was registered with HMRC, he was tax exempt in the UK. His contract of employment was governed by English law, contained a mobility clause that might require him to work in the UK, and his restrictive covenants applied covered the UK. Mr Green was made redundant and he brought claims before the employment tribunal in England.
The tribunal held that Mr Green was an expatriate employee, with a stronger connection to Saudi Arabia than the UK, so they did not have jurisdiction to consider his claim. He appealed.
The Employment Appeal Tribunal (EAT) held that the tribunal should have carried out an objective assessment whilst looking at all the factors. It should have focused on the fact that Mr Green worked for a UK business, rather than giving weight to the Company’s subjective explanation for the jurisdiction clause. The parties agreed that the contract was governed by English law, so there was no dispute that a breach of contract could be claimed in the UK. In contrast, it was up to the employment tribunal to decide which country Mr Green had stronger ties to with relation to his employment claims.
This is a cautionary tale for employers who routinely use standard form contracts for international employees. The tribunal will make a comprehensive evaluation of the situation, taking into account all relevant factors, and won’t simply rubberstamp an employer’s reasoning. Businesses should think carefully about the legal system which might apply, whether they intend for employees to have employment rights in the UK and what is actually happening in practice.