The claimant, a German national and resident, was the chief engineer on a ship. He worked offshore in Nigeria for a Scottish subsidiary of a US corporation. His contract of employment was stated to be governed by "UK law" and HR matters were dealt with from Aberdeen. When he was dismissed he brought claims for unfair dismissal, discrimination and payment in lieu of untaken holiday under the Working Time Regulations.
The Tribunal decided that he did not have a sufficiently strong connection with Britain and British employment law to be able to bring statutory employment claims. (Discrimination claims were excluded by specific provisions relating to work on ships in the Equality Act; a claim for breach of contract in the Tribunal was allowed to go ahead.)
The EAT upheld the Tribunal's decision, finding that:
• The place of employment is the starting point. The claimant had not worked in the UK, on a UK registered ship, or in UK territorial waters.
• Even if the employee could not bring a claim elsewhere, that wasn’t decisive.
• The election for UK law was insufficient on its own to give a tribunal jurisdiction.
• The claimant was not British, he didn’t live in Britain and he wasn’t subject to UK taxation. The EAT regarded this as a key aspect – as it was in last year's Hottak case where the Court of Appeal decided that Afghan nationals who worked for the British Government as interpreters could not bring race discrimination claims in the UK.
• The ultimate beneficiary of his work was the corporate group, based in the US.
For his claim for unpaid holiday pay under the Working Time Regulations, the claimant relied on the Bleuse principle (that a piece of UK legislation has to be construed in a way that is compatible with the EU right in question). His argument was that the necessary connection with the EU was established by his status as an EU citizen and his base in Germany. The EAT decided that EU law is limited in its application to the area of the EU – there is no reason why the territorial reach should automatically extend beyond.
Whether the Bleuse principle entitles EU citizens to enforce EU derived rights on a worldwide basis has given rise to significant debate. There are now two decisions which suggest that the right to payment in lieu of accrued but untaken leave is limited to those working within the EU.