There have been a number of cases on the territorial scope of UK employment protection legislation – whether an employment tribunal can consider a claim from an employee working overseas. The more unusual aspect of a recent EAT jurisdiction case was that the employer was not British, raising the additional issue of territorial reach – whether the claim should be heard in the UK.
The four countries involved in the case were:
Isle of Man: the claimant was employed by a company incorporated in the Isle of Man; his contract was subject to Manx law and provided for the Manx courts to have exclusive jurisdiction
Austria: the company, which was part of a wider international group, was run from Vienna
Dubai: the claimant worked three weeks in four in Dubai
UK: the claimant spent the fourth week as "rest time" at his home in the UK. In practice he carried out some work from home and he supervised a team of employees, two of whom were based in England. He was paid in euros but paid tax and NICs in the UK.
The issues for the EAT were:
could the claim be brought in the employment tribunal?
was the claimant within the territorial scope of UK employment protection legislation?
The EAT upheld the Tribunal's decision that the answer to both questions was no.
The Tribunal had decided that the employer was domiciled in Austria. Under the Brussels I Regulation, which deals with where an employment contract can be enforced, an employer domiciled in an EU member state can be sued either in the place it is domiciled, or in another member state where the employee habitually carries out his work. The EAT found that, despite thin factual evidence, the Tribunal was entitled to conclude that the employer was domiciled in Austria and that the employee did not habitually carry out work in England – his usual place of work was Dubai. The employer could not therefore be sued in the UK employment tribunal; the claimant would have to bring the claim in Austria.
The Tribunal was also entitled to conclude that the claimant could not establish territorial scope of UK employment protection legislation, on the basis that there was not a sufficiently strong connection with Britain and British employment law (the test established by the Supreme Court in Ravat v Halliburton in 2012). It was highly significant that the employer was not a British company and it was also relevant that the essential work carried out by the claimant was done outside the UK.